United States v. Boley

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

__________________

No. 97-10964 Summary Calendar __________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DANYEL BOLEY,

Defendant-Appellant.

-------------------------------------------- Appeal from the United States District Court for the Northern District of Texas (4:96-CR-129-1-Y) --------------------------------------------- July 1, 1998 Before JONES, SMITH, and STEWART, Circuit Judges.

PER CURIAM:*

Danyel Boley appeals his conviction and sentence for

distribution of cocaine base. He argues that the district court

abused its discretion in allowing an unduly suggestive in-court

identification and by admitting physical evidence with insufficient

evidence concerning the chain-of-custody. Boley also contends that

his sentence should not have been based on the quantity of cocaine

* 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 97-10964 -2-

base concerned in Count Two of the indictment and that Boley should

have been sentenced on the amount of pure cocaine involved, not the

mixture that is cocaine base.

Boley waived his in-court-identification issue by failing

to brief the district court's denial of his motion for a lineup

based in part on Boley's failure to comply with a local rule that

motions be supported with a brief. See United States v. Wilkes, 20

F.3d 651, 652 (5th Cir. 1994); FED. R. APP. P. 28(a)(4); Yohey v.

Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). Even if we

considered that issue as a plenary matter, the in-court

identification was not impermissibly suggestive. The evidence

concerning the chain of custody was sufficient for admission.

United States v. Casto, 889 F.2d 562, 568-69 (5th Cir. 1989). The

sentencing judge did not err by including the weight of the

diluents in cocaine base or by including the conduct concerned in

Count Two of the indictment. United States v. Smallwood, 920 F.2d

1231, 1237-38 (5th Cir. 1991); See United States v. Cartwright, 6

F.3d 294, 303-04 (5th Cir. 1993).

AFFIRMED.