United States v. Boley ( 1998 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 97-10964
Summary Calendar
__________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DANYEL BOLEY,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
(4:96-CR-129-1-Y)
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July 1, 1998
Before JONES, SMITH, and STEWART, Circuit Judges.
PER CURIAM:*
Danyel Boley appeals his conviction and sentence for
distribution of cocaine base. He argues that the district court
abused its discretion in allowing an unduly suggestive in-court
identification and by admitting physical evidence with insufficient
evidence concerning the chain-of-custody. Boley also contends that
his sentence should not have been based on the quantity of cocaine
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 97-10964
-2-
base concerned in Count Two of the indictment and that Boley should
have been sentenced on the amount of pure cocaine involved, not the
mixture that is cocaine base.
Boley waived his in-court-identification issue by failing
to brief the district court's denial of his motion for a lineup
based in part on Boley's failure to comply with a local rule that
motions be supported with a brief. See United States v. Wilkes, 20
F.3d 651, 652 (5th Cir. 1994); FED. R. APP. P. 28(a)(4); Yohey v.
Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). Even if we
considered that issue as a plenary matter, the in-court
identification was not impermissibly suggestive. The evidence
concerning the chain of custody was sufficient for admission.
United States v. Casto, 889 F.2d 562, 568-69 (5th Cir. 1989). The
sentencing judge did not err by including the weight of the
diluents in cocaine base or by including the conduct concerned in
Count Two of the indictment. United States v. Smallwood, 920 F.2d
1231, 1237-38 (5th Cir. 1991); See United States v. Cartwright, 6
F.3d 294, 303-04 (5th Cir. 1993).
AFFIRMED.