United States v. Macon ( 1998 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-50729
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KELLY SPENCER MACON;
DEANDRE UBECKA FREEMAN,
Defendants-Appellants.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. W-97-CR-18-2
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November 4, 1998
Before HIGGINBOTHAM, JONES, and DENNIS, Circuit Judges.
PER CURIAM:*
Kelly Spencer Macon and Deandre Ubecka Freeman appeal their
convictions and sentences for conspiracy to possess with the
intent to distribute cocaine base (crack) and possession with the
intent to distribute crack.
Both appellants challenge the district court’s Fourth
Amendment ruling, which denied the motions to suppress, based on
the lessee of the trailer home giving consent to the police for
the search. From our review of the arguments and the appellant
*
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that this opinion should not be published and is not precedent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. 97-50729
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record, we conclude that the district court’s determination that
the lessee had the authority to give consent for the search of
the entire trailer was not clearly erroneous. See United States
v. Gonzales, 121 F.3d 928, 938-39 (5th Cir. 1997); United States
v. Richard, 994 F.2d 244, 250 (5th Cir. 1993); United States v.
Smith, 930 F.2d 1081, 1084-85 (5th Cir. 1991).
Freeman argues that the district court impermissibly limited
defense counsel’s questioning during voir dire by prohibiting
questions concerning potential jurors’ understanding of the
distinctions between different drug offenses. No clear abuse of
discretion is evident. See United States v. Williams, 573 F.2d
284, 287-88 (5th Cir. 1978).
Macon argues that the prosecutor’s comment during argument
which mischaracterized the trial testimony of Mesha Reid
necessitates reversal. Because Macon failed to object to the
comment, we review for plain error. No plain error is evident.
In light of the overwhelming evidence of Macon’s guilt and in
light of the single instance of the prosecutor’s comment, Macon’s
substantial rights were not affected. See United States v.
Vaccaro, 115 F.3d 1211, 1218 (5th Cir. 1997), cert. denied, 118
S. Ct. 689 (1998); United States v. Calverley, 37 F.3d 160, 162-
64 (5th Cir. 1994) (en banc).
Both appellants challenge their sentences. Macon argues
that the district court erred in determining the amount of crack
for which Macon was held accountable. The information about the
drug quantity came from Richard Messina, and Macon argues that
Messina’s testimony lacked credibility as well as consistency and
No. 97-50729
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that the information lacked corroboration. Our review of the
record reveals that the district court’s finding is plausible and
thus, no clear error is apparent. See United States v. Bermea,
30 F.3d 1539, 1575 (5th Cir. 1994).
Freeman argues that the district court erred in ordering his
federal sentence to be served consecutively to his state sentence
for aggravated robbery. He asserts that the district court had
discretion, pursuant to U.S.S.G. § 5G1.3(c), p.s., to order the
sentence to be served consecutively to, concurrently with, or
partially concurrent with the state sentence; such discretion
called for the court to evaluate certain enumerated factors from
§ 5G1.3's commentary; and the court’s incorrect view of the
mandatory nature of the consecutive sentence requires a remand
for the court to exercise its discretion. No plain error is
evident because, even assuming that the court did not consider a
concurrent sentence, the circumstances of this case do not
indicate that a concurrent sentence would be warranted. Thus,
Freeman’s substantial rights were not affected. See Calverley,
37 F.3d at 165.
AFFIRMED.