United States v. Smith , 264 F.3d 518 ( 2001 )


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  •                IN THE UNITED STATES COURT OF APPEALS
                           FOR THE FIFTH CIRCUIT
    
    
    
                               No. 99-40844
                             Summary Calendar
    
    
    
    UNITED STATES OF AMERICA,
    
                                             Plaintiff-Appellee,
    
    versus
    
    MIKE SMITH, JR.; ROBERT LEE GEORGE,
    
                                             Defendants-Appellants.
    
                           --------------------
              Appeal from the United States District Court
                    for the Eastern District of Texas
                          USDC No. 1:98-CR-108-2
                           --------------------
                               May 31, 2000
    
    Before DAVIS, EMILIO M. GARZA and DENNIS, Circuit Judges.
    
    PER CURIAM:*
    
         Robert Lee George, Jr., appeals his jury-trial convictions
    
    for conspiracy to distribute cocaine and possession with the
    
    intent to distribute cocaine.   George’s codefendant, Mike Smith,
    
    Jr., appeals his jury-trial conviction for conspiracy to
    
    distribute cocaine.   Smith also appeals the life sentence imposed
    
    by the district court after his conviction.
    
         Neither appellant renewed their motions for judgments of
    
    acquittal at the close of all of the evidence.   Thus, their
    
    challenges to the sufficiency of the evidence are reviewed for
    
         *
            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    that this opinion should not be published and is not precedent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. 99-40844
                                     -2-
    
    plain error only.    See United States v. McCarty, 
    36 F.3d 1349
    ,
    
    1358 (5th Cir. 1994).    A conviction may be reversed under the
    
    plain-error standard only to avoid a “manifest miscarriage of
    
    justice.”    United States v. Parker, 
    133 F.3d 322
    , 328 (5th Cir.
    
    1998).
    
         The evidence adduced at trial established that Smith
    
    negotiated the terms and arranged the transaction of July 22,
    
    1999.    He then exchanged crack cocaine - which he himself claimed
    
    was from George - for money, and gave a portion of the money to
    
    George.    The evidence thus established that Smith and George
    
    conspired together to violate the narcotics laws.     See United
    
    States v. Smith, 
    203 F.3d 884
    , 887 (5th Cir. 2000).
    
         The evidence also established that George possessed crack
    
    cocaine with the intent to distribute it.    The Government
    
    presented tape-recorded evidence wherein Smith attributed the
    
    cocaine to George.    In addition, George had possession of
    
    currency given to complete the transaction when he was arrested.
    
    Based on such, a jury could reasonably have inferred either that
    
    George had actual possession of the crack before it was
    
    distributed, or that George had constructive possession of the
    
    crack.    See United States v. Cardenas, 
    9 F.3d 1139
    , 1158 (5th
    
    Cir. 1993).
    
         Smith’s due-process challenge to the Sentencing Guidelines
    
    has been rejected not only by this court, but by the Supreme
    
    Court.    See Mistretta v. United States, 
    488 U.S. 361
    , 412 (1989);
    
    United States v. Guajardo, 
    950 F.2d 203
    , 206 (5th Cir. 1991.)
    
    His equal-protection argument also fails.    Cf. Harris v. Johnson,
                              No. 99-40844
                                   -3-
    
    
    81 F.3d 535
    , 541 (5th Cir. 1996).   Smith contends that the
    
    district court erred in attributing crack cocaine to him based on
    
    assertions made by an admitted drug dealer.   However, Smith fails
    
    to demonstrate that the district court’s credibility
    
    determination was clearly erroneous.   See United States v. Vital,
    
    
    68 F.3d 114
    , 120 (5th Cir. 1995).
    
         AFFIRMED.