United States v. Washington , 95 F. App'x 701 ( 2004 )


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  •                                                         United States Court of Appeals
    Fifth Circuit
    F I L E D
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT                  April 22, 2004
    Charles R. Fulbruge III
    Clerk
    No. 03-10593
    Summary Calendar
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    KENNY WASHINGTON,
    Defendant-Appellant.
    --------------------
    Appeal from the United States District Court
    for the Northern District of Texas
    USDC No. 3:02-CR-00287-1
    --------------------
    Before HIGGINBOTHAM, DAVIS, and PRADO, Circuit Judges.
    PER CURIAM:*
    Kenny Washington appeals his conviction and sentence for
    conspiracy to commit bank theft.    After a thorough review of the
    record, we AFFIRM.
    The district court did not abuse its discretion in limiting
    the cross-examination of Ralphcel Eaton or in allowing Tom Young
    to testify.    Neither Eaton’s plea agreement in a pending and
    unrelated state prosecution, nor his testimony suggests that his
    testimony was motivated by the pending state charges.       Eaton’s
    *
    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    that this opinion should not be published and is not precedent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. 03-10593
    -2-
    deferred adjudications were not convictions under FED. R. EVID.
    609, and Washington did not include motive as a reason for cross-
    examining Eaton on the deferred adjudications. As for Young,
    contrary to Washington’s assertion, he was not a summary witness.
    Accordingly, there was no abuse of discretion.    United States v.
    Landerman, 
    109 F.3d 1053
    , 1062 (5th Cir.), modified by, 
    116 F.3d 119
    (1997); United States v. Townsend, 
    31 F.3d 262
    , 268 (5th Cir.
    1994).
    Nor did the district court clearly err in applying a four-
    point enhancement under U.S.S.G. § 3B1.1(a) for Washington’s role
    as an organizer or leader in the offense.   The record reflects
    that Washington exercised considerable decision-making authority
    and that Washington’s participation in the offense was integral.
    See U.S.S.G. § 3B1.1, cmt. n.4; United States v. Lage, 
    183 F.3d 374
    , 384 (5th Cir. 1999).
    Finally, the district court did not clearly err in
    determining that the scheme at Nationsbank should be considered
    relevant conduct.   The modus operandi was nearly identical at
    both Nationsbank and Wells Fargo.   See U.S.S.G. § 1B1.3 cmt.
    n.9(A) (Nov. 2000); United States v. Anderson, 
    174 F.3d 515
    , 526
    (5th Cir. 1999).
    The district court’s judgment is AFFIRMED.