United States v. Wines , 222 F. App'x 430 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 15, 2007
Charles R. Fulbruge III
Clerk
No. 05-30522
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KENNETH EARL WINES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 3:03-CR-30013
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Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Kenneth Earl Wines was convicted after a jury trial of
conspiracy to possess with intent to distribute 50 grams or more
of cocaine base (Count 1), conspiracy to distribute marijuana
(Count 2), possession with intent to distribute 50 grams or more
of cocaine base (Count 3), and possession of a firearm in
furtherance of and in relation to a drug trafficking crime (Count
4). The district court sentenced Wines to 360 months of
imprisonment on Counts 1 through 3, to run concurrently, and 60
*
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this opinion should not be published and is not precedent except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. 05-30522
-2-
months of imprisonment on Count 4, to run consecutively to the
terms of imprisonment for Counts 1 through 3.
Wines argues that the evidence was insufficient to convict
him of Counts 1 through 3. He contends that he was not involved
in the conspiracy, that he did not own the cocaine base that was
the subject of Count 3, and that he did not reside at the
residence at which the firearms that were the subject of Count 4
were found. However, viewing the evidence in the light most
favorable to the jury’s verdict, a reasonable trier of fact could
have concluded beyond a reasonable doubt that Wines was involved
in the conspiracy, that he owned the cocaine base that was the
subject of Count 3, and that he resided at the residence at which
the firearms that were the subject of Count 4 were found. See
United States v. Delgado, 256 F.3d 264, 273-74 (5th Cir. 2001);
United States v. Resio-Trejo, 45 F.3d 907, 910 (5th Cir. 1995).
Wines argues that the district court abused its discretion
in issuing a cautionary instruction after it determined that it
had allowed into evidence inadmissible hearsay, rather than
declaring a mistrial. However, similar admissible evidence also
was admitted at trial. Accordingly, the testimony did not have a
substantial impact on the jury’s verdict, and the district court
did not abuse its discretion in denying Wines’s motion for a
mistrial. See United States v. Freeman, 434 F.3d 369, 375 (5th
Cir. 2005).
No. 05-30522
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Wines also argues that his Sixth Amendment right to counsel
was violated when the district court refused to grant him a
continuance to give his retained counsel time to be admitted to
the Western District of Louisiana and to prepare for trial. He
contends that the district court misapplied three of the factors
for making such a determination that were set forth in Gandy v.
Alabama, 569 F.2d 1318 (5th Cir. 1978). However, Wines offers no
authority in support of the alleged misapplications of Gandy, and
he does not challenge other factors that the district court
considered in denying the continuance. Accordingly, the district
court did not abuse its discretion in denying the continuance.
See United States v. Barnett, 197 F.3d 138, 144 (5th Cir. 1999).
AFFIRMED.