United States v. Brooks

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS May 28, 2003

FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 02-30782 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

L. C. BROOKS, also known as Bo-Jack,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Middle District of Louisiana USDC No. 00-CR-178-ALL-A --------------------

Before JONES, STEWART, and DENNIS, Circuit Judges.

PER CURIAM:*

L. C. Brooks appeals his conviction and sentence on two counts

of possession with intent to distribute cocaine base. Brooks

contends that an incriminating statement made to a jail guard was

inadmissible under the Fifth Amendment because he had not been

advised of his rights as required by Miranda v. Arizona, 384 U.S.

436 (1966), and because the statement was obtained in violation of

his Sixth Amendment right to counsel. The statement was properly

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-30782 -2-

admitted because it was voluntary and not the result of a custodial

“interrogation.” Miranda, 384 U.S. at 478; United States v.

Gonzales, 121 F.3d 928, 940 & n.7 (5th Cir. 1997). Brooks’s Sixth

Amendment right to counsel had not yet attached because he was in

custody on a state drug charge and had not yet been charged with

the instant federal crime. United States v. Avants, 278 F.3d 510,

517-18 (5th Cir.), cert. denied, 122 S. Ct. 2683 (2002).

Brooks also challenges the sufficiency of the evidence used to

convict him. Because Brooks did not renew his motion for acquittal

at either the close of all evidence or in a post-trial motion, we

review only to determine whether there has been a “manifest

miscarriage of justice.” United States v. McIntosh, 280 F.3d 479,

483 (5th Cir. 2002). We find none, as the evidence presented at

trial was sufficient for a reasonable jury to convict Brooks. See

United States v. Wise, 221 F.3d 140, 147 (5th Cir. 2000); United

States v. Sparks, 2 F.3d 574, 582 (5th Cir. 1993).

Brooks finally challenges the two-level increase in his

offense level for obstruction of justice. We believe this increase

was appropriate because Brooks intentionally made false statements

concerning a material issue while under oath at trial. See United

States v. Dunnigan, 507 U.S. 87, 94 (1993); United States v. Storm,

36 F.3d 1289, 1295 (5th Cir. 1994).

The judgment of the district court is AFFIRMED.

AFFIRMED.