United States v. Osbourne ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 96-4906
DUANE JELEAL OSBOURNE, a/k/a
Rocky, a/k/a Duane Anthony
Osborne,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Richard L. Voorhees, Chief District Judge.
(CR-95-178-V)
Submitted: April 7, 1998
Decided: May 19, 1998
Before LUTTIG and MICHAEL, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
Alan Dexter Bowman, P.A., Newark, New Jersey, for Appellant.
Mark T. Calloway, United States Attorney, Gretchen C.F. Shappert,
Assistant United States Attorney, Charlotte, North Carolina, for
Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Duane Jeleal Osbourne was convicted by a jury of conspiring to
possess with intent to distribute and to distribute cocaine and crack
cocaine within 1000 feet of a playground in violation of 21 U.S.C.A.
§§ 846, 860 (West Supp. 1998). He appeals his conviction and sen-
tence, contending that (1) there was an impermissible variance
between the indictment that charged a single conspiracy and the evi-
dence at trial that Osbourne claims established multiple conspiracies;
(2) the district court erred by failing to instruct the jury on multiple
conspiracies; and (3) the district court erred by enhancing his base
offense level by two levels under USSG § 2D1.2(a)(1)* because the
playground is not "open to the public." Because Osbourne failed to
raise these issues in the district court, our review is for plain error. See
United States v. Olano, 507 U.S. 725, 732-37 (1993). We affirm.
Osbourne first claims that the district court sua sponte should have
dismissed the charge against him because there was a variance
between the indictment and the evidence at trial."In a conspiracy
prosecution, a defendant may establish the existence of a material
variance by showing that the indictment alleged a single conspiracy
but that the government's proof at trial established the existence of
multiple, separate conspiracies." United States v. Kennedy, 32 F.3d
876, 883 (4th Cir. 1994). To show that multiple conspiracies existed,
Osbourne relies on Darwin Mobley's testimony that at some point
during the conspiracy, he stopped working for his uncle, Paul Mob-
ley, and began his own drug distribution business. Osbourne over-
looks the fact that he supplied Darwin Mobley with the drugs to
distribute. Moreover, other co-conspirators testified that they trans-
ported drugs for Osbourne from New York to the Grier Heights
neighborhood in Charlotte, North Carolina, and that Osbourne was
_________________________________________________________________
*U.S. SENTENCING GUIDELINES MANUAL (1995).
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one of their suppliers. To the extent that Osbourne attacks his co-
conspirators' testimony because they pled guilty to participating in
the conspiracy and received lighter sentences, we do not review the
credibility of witnesses or weigh the evidence. See United States v.
Wilson, 118 F.3d 228, 234 (4th Cir. 1997). Because there was over-
whelming evidence of a single conspiracy, we find no plain error
here.
Nor did the district court plainly err in failing to instruct the jury
on multiple conspiracies. Failure to give a jury instruction on multiple
conspiracies, even if the evidence supports such an instruction, is not
reversible error unless a defendant can show he was involved in a sep-
arate conspiracy unrelated to the overall conspiracy charged in the
indictment. See United States v. Howard, 115 F.3d 1151, 1157 (4th
Cir. 1997); Kennedy, 32 F.3d at 884. Osbourne cannot make such a
showing. The evidence at trial sufficiently proved that Osbourne was
a main actor in the conspiracy charged in the indictment.
Finally, Osbourne contends that the district court erred in applying
a two-level enhancement of his base offense level under USSG
§ 2D1.2(a)(1). He claims that as a matter of law, § 860 does not apply
to privately owned and maintained facilities, such as the playground
at the apartment complex in Grier Heights, and therefore that the
playground was not "open to the public." The issue of whether the
playground was "open to the public" was a question of fact for the
jury. See United States v. Horsley, 56 F.3d 50, 51-52 (11th Cir. 1995).
By rendering a special verdict that the conspiracy involved an intent
to distribute cocaine and crack cocaine within 1000 feet of a play-
ground, the jury necessarily found that the playground met the statu-
tory requirements of § 860.
Accordingly, we affirm Osbourne'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 argu-
ment would not aid the decisional process.
AFFIRMED
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