United States v. Wright ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 96-4284
KEITH NEAL WRIGHT, a/k/a Jazz,
a/k/a Jermone Farrow,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
N. Carlton Tilley, Jr., District Judge.
(CR-95-90)
Submitted: January 21, 1997
Decided: February 11, 1997
Before WILKINS, NIEMEYER, and LUTTIG, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
J. Matthew Martin, MARTIN & MARTIN, P.A., Hillsborough, North
Carolina, for Appellant. Walter C. Holton, Jr., United States Attorney,
Gill P. Beck, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Keith Wright appeals his conviction and sentence for conspiracy to
possess with intent to distribute cocaine base in violation of 21 U.S.C.
§ 846 (1994). Wright contends on appeal that his sentence violates the
Equal Protection Clause, the district court should have granted his
motion for acquittal because there was insufficient evidence to sup-
port his sentence, that the evidence was insufficient to support a sen-
tencing enhancement, and that the prosecutor made an improper
comment during closing argument. Finding no error, we affirm.
I
Wright first claims that this court should revisit its prior decisions
holding that the disparity in sentencing between cocaine base and
powder cocaine offenses is constitutionally permissible. United States
v. Fisher, 58 F.3d 96, 98-100 (4th Cir.), cert. denied, ___ U.S. ___,
64 U.S.L.W. 3720 (U.S. Oct. 10, 1995) (No. 95-5923); United States
v. Byrnum, 3 F.3d 769, 774-75 (4th Cir. 1993); United States v.
Thomas, 900 F.2d 37, 38-40 (4th Cir. 1990). Wright relies on the rec-
ommendation of the United States Sentencing Commission that the
disparity be eliminated. However, Congress did not adopt the Sen-
tencing Commission's recommendation to eliminate or reduce the dis-
parity. See United States v. Hayden, 85 F.3d 153, 157-58 (4th Cir.
1996). We decline to revisit our precedent in this area, and hold that
the disparity presents no ground for overturning Wright's sentence.
II
Wright next contends that the district court should have granted his
motion for a new trial because the evidence was insufficient to sup-
port the jury's guilty verdict. This Court reviews a challenge to the
sufficiency of the evidence in the light most favorable to the govern-
2
ment. Glasser v. United States, 315 U.S. 60, 80 (1942). See generally
United States v. Brooks, 957 F.2d 1138, 1147 (4th Cir. 1992). The
court considers both circumstantial and direct evidence, and allows
the government the benefit of all reasonable inferences from the facts
established to those sought to be established. United States v.
Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982). The credibility of wit-
nesses is in the sole province of the jury and is not subject to appellate
review. United States v. Saunders, 886 F.2d 56, 60 (4th Cir. 1989).
Wright's conviction was based almost exclusively on the testimony
of several people with whom he dealt drugs. Not surprisingly, all of
these witnesses had criminal record. All had pled guilty to drug
offenses, and would not be sentenced until after Wright's trial. All
testified that although they had not been promised any specific reduc-
tion in exchange for their testimony, they hoped for lighter sentences.
The Government's primary witness was Andre Royster. Royster
testified that after he met Wright, he bought small quantities of
cocaine from Wright to cook into crack cocaine. Thereafter, Royster
started buying crack cocaine from Wright, first in one ounce quanti-
ties, later escalating to half kilogram and kilogram quantities. Eventu-
ally Royster was buying crack cocaine from Wright at the rate of one
kilogram every seven to ten days. Royster observed several transac-
tions between Wright and other drug dealers, and eventually Wright
began using Royster as the middleman between himself and these
other dealers.
Two other drug dealers also testified that they had purchased sub-
stantial quantities of drugs from Wright for resale. James Davis stated
that on one occasion he bought a half kilogram of crack from Wright.
Antwan Smith admitted to buying two ounces of crack at a time from
Wright on five or six occasions.
There was ample testimony at trial to establish that Wright con-
spired with Royster and others to distribute crack cocaine over a
period of several years. Wright's challenge to this evidence, though,
is that it came from his co-conspirators, drug dealers all, who were
inherently incredible. Accomplice testimony, standing alone, can
serve as the basis for a conviction. United States v. Burnes, 990 F.2d
1426, 1439 (4th Cir. 1993). Further, as the Seventh Circuit has noted,
3
"`[w]e cannot expect that witnesses will possess the credibility of
people of the cloth, such as rabbis, priests, and nuns; that is why one
of the jury's roles is to decide the credibility of witnesses.'" United
States v. Rose, 12 F.3d 1414, 1425 (7th Cir. 1994) (quoting United
States v. Rovetuso, 768 F.2d 809, 818 (7th Cir. 1985)). Wright was
able to cross examine each of the witnesses to bring out potential bias
and problems with credibility. The jury's determination that these wit-
nesses were credible is not reviewable on appeal. Accordingly, the
district court did not err in denying Wright's motion for new trial
based on insufficient evidence.
III
Wright next contends that there was not sufficient evidence to sup-
port the two-point sentencing enhancement for possession of a fire-
arm. See United States Sentencing Commission, Guidelines Manual,
§ 2D1.1(b)(1) (Nov. 1994). Whether the district court correctly
applied a sentencing enhancement for possession of a firearm during
the commission of a drug conspiracy is essentially a factual question
reviewed for clear error. United States v. Banks , 10 F.3d 1044, 1057
(4th Cir. 1993). Because the question relates to a sentencing enhance-
ment, the Government had the burden of proving possession of a fire-
arm by a preponderance of the evidence. United States v. Powell, 886
F.2d 81, 85 (4th Cir. 1989).
Royster testified that he had seen Wright in possession of various
firearms in relation to the drug business. Contrary to Wright's asser-
tion on appeal, the questions put to Royster were not ambiguous.1
Further, Royster's testimony established both that Wright possessed
firearms and that Wright's possession was connected to his drug
_________________________________________________________________
1 Royster testified:
Q: On the occasions when you did business with Mr. Wright,
did you ever see him in possession of a firearm?
A: Yes, sir.
Q: What type?
A: .32s, 9 millimeters, .45 Glocks, a number of guns.
(J.A. 68).
4
offense. United States v. Nale, 101 F.3d 1000, 1004 (4th Cir. 1996).
The district court, relying on Royster's testimony, did not clearly err
in determining that Wright possessed a firearm in relation to the drug
trafficking conspiracy. Accordingly, this challenge is without merit.
IV
Finally, Wright contends that the prosecutor implicated, in his clos-
ing statement, that Wright was telling his counsel what to ask during
cross examination of the Government's witnesses, and that the prose-
cutor's implication was an indirect comment on Wright's decision not
to testify.2 Wright did not object to this statement during the trial, so
it may only be the basis for relief if it amounted to plain error. United
States v. Olano, 507 U.S. 725, 732 (1993).
The prosecutor is forbidden from commenting upon the defen-
dant's silence at trial. Griffin v. California , 380 U.S. 609, 613-14
(1965). "The test for determining whether an indirect remark consti-
tutes an improper comment on a defendant's failure to testify is: `Was
the language used manifestly intended to be, or was it of such charac-
ter that the jury would naturally and necessarily take it to be a
comment on the failure of the accused to testify.'" United States v.
Whitehead, 618 F.2d 523, 527 (4th Cir. 1980) (quoting United States
v. Anderson, 481 F.2d 685, 701 (4th Cir. 1973), aff'd, 417 U.S. 211(1974)).
Even if the prosecutor's statement could be considered to implicate
_________________________________________________________________
2 During closing argument, the prosecutor said:
Remember cross examination when Mr. Martin would ask
[Royster] a question and then get his [Martin's] sleeve pulled on
and then all of a sudden, what about "Puma"? What about the S
and M girls? What about "T.T."? He told you he[Royster] went
independent. He told you that on direct examination. But Mr.
Martin will stand before you and say, with a very straight face,
well, the evidence didn't say anything about that until I asked
him about that on cross-examination. Another example of the
evidence not supporting the argument.
(J.A. 240).
5
Wright's decision not to testify, any error was harmless. See United
States v. Hastings, 461 U.S. 499, 508 (1983). The evidence at trial
was more than sufficient to support Wright's conviction, and the pros-
ecutor's statement was so tangentially related to Wright's silence at
trial that the jury would not have reached a different conclusion in the
absence of the prosecutor's comment. Finally, even if there was an
error, it does not rise to the level of plain error, as defined in Olano.
Therefore, this claim lacks merit.
We affirm Wright's conviction and sentence. We dispense with
oral argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
significantly aid the decisional process.
AFFIRMED
6