United States v. Gainey ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5744
ONTARIO LAMAR GAINEY,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Malcolm J. Howard, District Judge.
(CR-94-68-H)
Submitted: May 21, 1996
Decided: June 18, 1996
Before HAMILTON and MICHAEL, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Robert D. Jacobson, Lumberton, North Carolina, for Appellant.
Janice McKenzie Cole, United States Attorney, J. Douglas McCul-
lough, Assistant United States Attorney, Raleigh, North Carolina, for
Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Appellant Ontario Lamar Gainey was convicted of one count of
conspiracy to possess with intent to distribute cocaine base, 21 U.S.C.
§ 846 (1988). On appeal, he contends the district court erred by deny-
ing his motions for judgment of acquittal, the Government failed to
establish drug quantities for sentencing purposes by a preponderance
of the evidence, and that he should have received a downward adjust-
ment for being a minor participant in the drug conspiracy. Finding no
error, we affirm.
Gainey was indicted with thirty-nine other defendants for taking
part in a wide-ranging cocaine conspiracy. The conspiracy's admitted
leader, Berry Bryant, testified that he sold cocaine base ("crack") to
Gainey on a weekly basis for "nine to 12 months, about a year." Addi-
tionally, Dwayne Robinson testified that he sold crack he purchased
from Bryant to Gainey for approximately one-and-a-half years. Rob-
inson stated that Gainey "dealt drugs for me." Gainey moved for a
judgment of acquittal at the close of the Government's evidence and
at the close of all the evidence, but the district court denied both
motions.
After conviction, Gainey objected to the amount of drugs attributed
to him by the presentence report. He stated that he"denied his
involve[ment] in the entire thing and he just doesn't think he should
be attributed to any of it." Gainey offered no other basis for his objec-
tion. Additionally, Gainey requested a two-point downward adjust-
ment under USSG § 3B1.2 (Nov. 1994) for being a minor or minimal
participant. The district court denied both motions.
We review a district court's denial of a motion for judgment of
acquittal under a sufficiency of the evidence standard. United States
v. Brooks, 957 F.2d 1138, 1147 (4th Cir.), cert. denied, 505 U.S. 12282
(1992). To sustain a conviction, the evidence viewed in the light most
favorable to the government must be sufficient for a rational jury to
find the essential elements of the crime beyond a reasonable doubt.
United States v. Brewer, 1 F.3d 1430, 1437 (4th Cir. 1993); see
Glasser v. United States, 315 U.S. 60, 80 (1982). To support a convic-
tion for conspiracy under 21 U.S.C. § 846, the Government must
show the existence of a conspiracy and the defendant's knowledge of
and voluntary joinder in that conspiracy. United States v. Bell, 954
F.2d 232, 236 (4th Cir. 1992). Once the existence of a conspiracy is
shown, "the evidence need only establish a slight connection between
the defendant and the conspiracy to support conviction." Brooks, 957
F.2d at 1147 (citing United States v. Seni, 662 F.2d 277, 285 n. 7 (4th
Cir. 1981), cert. denied, 455 U.S. 950 (1982)).
The Government presented sufficient evidence to sustain Gainey's
conviction for conspiracy. The conspiracy's admitted leader, Bryant,
testified that he sold drugs to Gainey on a weekly basis for "about a
year." Additionally, Robinson testified that Gainey dealt drugs for
him--drugs Robinson purchased from Bryant. While Gainey con-
tends that this Court should seriously scrutinize Bryant and Robin-
son's testimony, the credibility of witnesses is an issue solely within
the province of the jury. United States v. Russell, 971 F.2d 1098, 1109
(4th Cir. 1992), cert. denied, 506 U.S. 1066 (1993). Thus, the district
court did not err in denying Gainey's motions for judgment of acquit-
tal.
Next, we employ a clearly erroneous standard to review a district
court's determination of drug amounts, United States v. Goff, 907
F.2d 1441, 1444 (4th Cir. 1990), and to review its factual findings
upon a defendant's objection. United States v. McManus, 23 F.3d
878, 882 (4th Cir. 1994) (citing Fed. R. Crim. P. 32; United States v.
Eschweiler, 782 F.2d 1385 (7th Cir. 1986)). While the Government
bears the burden of proving the quantity of drugs by a preponderance
of the evidence, Goff, 907 F.2d at 1444, a defendant challenging the
amount bears the burden of showing its inaccuracy. United States v.
Terry, 916 F.2d 157, 162 (4th Cir. 1990). A mere objection to the
finding in the presentence report is insufficient. Id. Rather, the defen-
dant has an affirmative duty to show that the information in the report
is unreliable and articulate the reasons why its facts are inaccurate. Id.Without such an affirmative showing, the district court is "`free to
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adopt the findings of the [presentence report] without more specific
inquiry or explanation.'" Id. (quoting United States v. Mueller, 902
F.2d 336, 346 (5th Cir. 1990)).
In challenging the drug quantities noted in the presentence report,
Gainey failed to specifically articulate the reasons why they were
erroneous. Rather, he merely stated that he "denied his involve[ment]
in the entire thing and he just doesn't think he should be attributed to
any of it." Such a conclusory allegation is insufficient to meet his
affirmative duty to show that the presentence report's information
was inaccurate. Thus, Gainey's claim is without merit.
Additionally, Gainey's claim that the district court failed to make
specific factual findings as to the drug amounts after his objection
also is without merit. Because Gainey failed to make an affirmative
showing of the presentence report's inaccuracies, the district court
was "`free to adopt the findings of the [presentence report] without
more specific inquiry or explanation.'" Id.Finally, we review a district court's decision not to adjust down-
ward under § 3B1.2 under the clearly erroneous standard. United
States v. Daughtrey, 874 F.2d 213, 218 (4th Cir. 1989). Under
§ 3B1.2, a district court may grant a two-point downward adjustment
if the defendant played a minor role in the offense. Brooks, 957 F.2d
at 1149.
The district court did not clearly err in refusing to grant the adjust-
ment. The trial testimony established that Gainey was involved in the
Bryant conspiracy for at least a year and a half. His involvement did
not comprise a single event, but an extended connection. Addition-
ally, a drug seller in a drug conspiracy generally cannot be considered
a minor participant. Id.
Accordingly, we affirm Gainey's conviction and sentence. We dis-
pense with oral argument because the facts and legal contentions are
adequately presented in the material before the court and argument
would not aid the decisional process.
AFFIRMED
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