United States v. Davis

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-60610 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

STANLEY K. DAVIS,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Northern District of Mississippi USDC No. 1:99-CR-71-S-2 -------------------- July 23, 2001 Before DAVIS, JONES, and DeMOSS, Circuit Judges:

PER CURIAM:*

Stanley K. Davis has filed a notice of appeal from his

guilty-plea conviction for distribution of marijuana, in violation

of 21 U.S.C. §§ 841(a) and (b)(1)(D), and his jury conviction for

conspiracy to distribute more than 50 grams of methamphetamine, in

violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B). He first avers

that the evidence was insufficient to convict him of conspiracy to

distribute more than 50 grams of methamphetamine. Davis preserved

this issue for review by moving for judgment of acquittal at the

close of the Government’s case-in-chief and at the close of all the

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-60610 -2-

evidence. In reviewing the sufficiency of the evidence, this court

examines the evidence, together with all credibility choices and

reasonable inferences, in the light most favorable to the

Government. United States v. Maseratti, 1 F.3d 330, 337 (5th Cir.

1993). The verdict will be upheld if the court concludes that “any

reasonable trier of fact could have found that the evidence

established guilt beyond a reasonable doubt.” Id.

In light of the testimony that (1) between 1998 and 1999

Brad Davis and Davis were in the business of selling

methamphetamine; (2) Brad Davis furnished the methamphetamine and

Davis sold it; (3) on one occasion, Richard Lawrence purchased two

ounces of methamphetamine from Brad Davis; (4) on another occasion,

April 6, 1999, Stanley and Brad Davis sold 42.1 grams of

methamphetamine to Lawrence under DEA surveillance; and (5) Davis

bragged about selling 10 ounces of methamphetamine to a Jackson,

Mississippi, customer, the evidence was sufficient to support the

jury’s finding that the offense of conviction involved more than 50

grams of methamphetamine.

Davis also avers that since the only seized amount of

drugs was 42.1 grams, and not in excess of 50 grams, his sentence

is unconstitutional in light of Apprendi v. New Jersey, 530 U.S.

466 (2000). Apprendi has no application to Davis’ case. Apprendi

is “limited to facts which increase the penalty beyond the

statutory maximum, and does not invalidate a court’s factual

finding for the purposes of determining the applicable Sentencing

Guidelines.” United States v. Doggett, 230 F.3d 160, 166 (5th Cir.

2000), cert. denied, 121 S. Ct. 1152 (2001). The indictment No. 00-60610 -3-

charged Davis with conspiracy to distribute methamphetamine in

excess of 50 grams, and the evidence was sufficient beyond a

reasonable doubt to prove the conspiracy charged. Moreover,

because Davis’ 324-month sentence did not exceed the statutory

maximum, his sentence is not invalid under Apprendi. See United

States v. Keith, 230 F.3d 784, 786-87 (5th Cir. 2000), cert.

denied, 121 S. Ct. 1163 (2001); 21 U.S.C. § 841(b)(1)(A)(viii).

Davis avers next that the district court erred in

attributing relevant offense conduct to him because his drug

activity comprising the relevant offense conduct took place prior

to the formation of the conspiracy for which he was convicted.

Alternatively, he contends that there was insufficient evidence to

establish the relevant offense conduct.

“The amount of drugs for which an individual [defendant]

shall be held accountable represents a factual finding that must be

upheld unless clearly erroneous.” United States v. Bermea, 30 F.3d

1539, 1575 (5th Cir. 1994). We have reviewed the record and

conclude that the district court did not clearly err in attributing

the 7,456.05 grams of methamphetamine to Davis as relevant conduct.

See U.S.S.G. § 1B1.3(a)(1)(A).

Lastly, Davis avers that the district court erred in

classifying him as a career offender. He contends that his federal

felony conviction for conspiracy to distribute a controlled

substance may not serve to trigger career-offender status under the

sentencing guidelines. His argument is without merit. The

Sentencing Commission has now lawfully included drug conspiracies

in the category of crimes triggering classification as a career No. 00-60610 -4-

offender under U.S.S.G. § 4B1.1 of the Sentencing Guidelines.

United States v. Lightbourn, 115 F.3d 291, 293 (5th Cir. 1997).

AFFIRMED.