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 1996-07

United States v. Sweeney ( 1996 )


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  • UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.                                                                    No. 95-5513
KENNETH WAYNE SWEENEY,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Greenville.
William B. Traxler, Jr., District Judge.
(CR-95-258)
Submitted: June 20, 1996
Decided: July 15, 1996
Before HALL, WILKINS, and HAMILTON, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Benjamin T. Stepp, Assistant Federal Public Defender, Greenville,
South Carolina, for Appellant. J. Preston Strom, Jr., United States
Attorney, David C. Stephens, Assistant United States Attorney,
Greenville, South Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Kenneth Wayne Sweeney was convicted by a jury of possession
with intent to distribute and distribution of crack cocaine, 21 U.S.C.A.
§ 841 (West 1981 & Supp. 1996). He was sentenced to serve twenty-
four months imprisonment. Sweeney's attorney has filed a brief pur-
suant to Anders v. California,
    386 U.S. 738 
    (1967), raising three
issues but stating that, in his view, there are no meritorious issues for
appeal. Sweeney was advised of his right to file a supplemental pro
se brief, but has not chosen to do so. We affirm.
An undercover police officer and a confidential informant testified
at Sweeney's trial that at about 7:00 p.m. on September 15, 1993, the
informant took the officer to Sweeney's mobile home where Sweeney
sold .30 grams of crack to the officer for $40. The informant knew
Sweeney because she had bought crack from him before. When they
arrived at his mobile home, Sweeney was cooking crack with a blow-
torch. Although no lights were on in the mobile home, the officer tes-
tified that Sweeney stood at the sink, where the light from the window
allowed her to get a good look at him. Sweeney presented no evi-
dence.
We first find that the evidence was sufficient to convict Sweeney.
To sustain a conviction, the evidence when 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.
Glasser v. United States,
    315 U.S. 60
    , 80 (1942); United States v.
Brewer,
    1 F.3d 1430
    , 1437 (4th Cir. 1993). The testimony of the gov-
ernment's witnesses was enough to establish Sweeney's guilt if the
jury found them credible, which it did. An appellate court does not
review the jury's decision on the credibility of witnesses. United
States v. Saunders,
    886 F.2d 56
    , 60 (4th Cir. 1989).
The district court did not err in finding the rule of lenity inapplica-
ble and sentencing Sweeney under the penalties for crack offenses set
out in § 841. See, e.g., United States v. Fisher,
    58 F.3d 96
    , 99 (4th
Cir.), cert. denied, ___ U.S. #6D6D 6D#,
    64 U.S.L.W. 3270 
    (U.S. Oct. 10,
1995) (No. 95-5923). Nor did the court err in declining to depart on
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the ground that the 100-to-1 ratio for crack and cocaine offenses lacks
a rational basis or was inadequately considered by the Sentencing
Commission. See United States v. Hayden, ___ F.3d ___,
    1996 WL 287799
    , at *3 (4th Cir. May 31, 1996); United States v. Anderson,
___ F.3d ___,
    1996 WL 174568
    , at *2 (D.C. Cir. Apr. 16, 1996).
In accordance with Anders, we have examined the entire record in
this case and find no meritorious issues for appeal. We therefore
affirm the conviction and the sentence imposed by the district court.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the record and briefs, and oral argu-
ment would not aid the decisional process.
This court requires that counsel inform his client, in writing, of his
right to petition the Supreme Court of the United States for further
review. If the client requests that a petition be filed, but counsel
believes that such a petition would be frivolous, then counsel may
move in this court for leave to withdraw from representation. Coun-
sel's motion must state that a copy thereof was served on the client.
AFFIRMED
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