United States v. Anthony Pope , 538 F. App'x 580 ( 2013 )

Case: 12-50958 Document: 00512343938 Page: 1 Date Filed: 08/16/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 16, 2013
No. 12-50958
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ANTHONY SCOTT POPE, also known as Alabama,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:11-CR-365-1
Before KING, DeMOSS, and GRAVES, Circuit Judges.
PER CURIAM:*
Anthony Scott Pope was convicted following a three-day jury trial of
conspiracy to distribute and possess with intent to distribute 50 grams or more
of methamphetamine (actual) and 500 grams or more of a mixture and substance
containing a detectable amount of methamphetamine. The district court
sentenced Pope to life in prison and a 10-year term of supervised release.
A hearing was held on Pope’s motion to suppress evidence that was seized
following the stop of a vehicle in which he was a passenger. Pope argues that
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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No. 12-50958
the district court erred in finding that a tip from an informant provided
reasonable suspicion to stop the vehicle on the belief that its occupants had
conducted a drug transaction within the previous few hours. Pope does not
challenge the district court’s alternative finding that the informant’s controlled
buy of methamphetamine from Pope gave officers probable cause to stop the
vehicle to arrest Pope for distribution of methamphetamine. Pope has thus
effectively abandoned any challenge to the district court’s determination that the
initial stop was constitutionally valid. See United States v. Scroggins, 599 F.3d
433, 447 (5th Cir. 2010); see also United States v. Hardy, 101 F. App’x 959, 960
(5th Cir. 2004) (unpublished).
Pope next challenges the denial of his motion for a continuance. We
review that denial for an abuse of discretion, looking at the totality of the
circumstances. See United States v. Stalnaker, 571 F.3d 428, 439 (5th Cir. 2009).
On the morning of trial, Pope learned that the chemist who initially tested a
drug sample for the Government in his case had been under investigation for
drug use. The Government learned of the problem with the chemist the week
before and had the evidence retested by a new chemist who testified at trial.
Pope sought a continuance and now contends that he was deprived of an
opportunity to find out more about the investigation of the first chemist and
that, as a result, he was unable to effectively cross-examine the new chemist or
properly challenge the evidence that was tested. Pope’s assertions of prejudice
stemming from the district court’s denial of his request for a continuance are
merely speculative and, in light of the totality of the circumstances–including
counsel’s cross-examination of the new chemist regarding the minor differences
in the findings–do not demonstrate any abuse of discretion. See id. at 439;
United States v. German, 486 F.3d 849, 854 (5th Cir. 2007).
Pope challenges the sufficiency of the evidence adduced at trial to support
the jury’s finding that the conspiracy involved the amount of methamphetamine
charged in the indictment. Pope preserved this issue by making a timely motion
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No. 12-50958
for a judgment of acquittal under Rule 29 of the Federal Rules of Criminal
Procedure. See United States v. Rose, 587 F.3d 695, 702 (5th Cir. 2009). We
consider the evidence in the light most favorable to the prosecution, drawing all
inferences and making all credibility choices in support of the verdict. See
Jackson v. Virginia, 443 U.S. 307, 319 (1979); United States v. Moore, 708 F.3d
639, 645 (5th Cir. 2013). If that evidence could lead “any rational trier of fact . . .
[to] have found the essential elements of the crime beyond a reasonable doubt,”
then the evidence is sufficient to support the conviction. Jackson, 443 U.S. at
319. Considering the testimony regarding only transactions in which Pope
obtained methamphetamine from his suppliers, a jury reasonably could have
concluded that those transactions involved almost 1,100 grams of a mixture
containing a detectable amount of the drug. Additionally, given the evidence
regarding the purity of samples that were tested and the total amount
attributable to Pope, a rational juror could have found beyond a reasonable
doubt that Pope’s offense involved 50 grams of actual methamphetamine.
Finally, Pope argues that the district court erred by holding him
accountable for 1.06 kilograms of actual methamphetamine and assessing an
offense level of 36 when calculating his guidelines sentencing range. We need
not decide whether the district court erred, because Pope was subject to a
statutorily mandated life sentence due to his prior felony drug convictions, and
that sentence became the guidelines range. See 21 U.S.C. § 841(b)(1)(A)(viii);
U.S.S.G. § 5G1.1(b). Any error there may have been in determining drug
quantity and base offense level did not affect the selection of his sentence and
was harmless. See Williams v. United States, 503 U.S. 193, 202-03 (1992); see
also United States v. Cervantes, 706 F.3d 603, 620 n.8 (5th Cir. 2013).
AFFIRMED.
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