United States v. Hays

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 23, 2002
• Docket: 01-31333
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-31333 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GREGORY HAYS,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Louisiana USDC No. 01-CR-50033-2 -------------------- August 19, 2002

Before JONES, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Gregory Hays appeals his conviction and sentence for

conspiracy to distribute five grams or more of crack cocaine in

violation of 21 U.S.C. §§ 841(a)(1) and 846. Hays challenges the

district court’s denial of his motion to suppress an undercover

agent’s identification testimony on the ground that the

identification derived from an impermissibly suggestive

photographic line-up and resulted in an unreliable

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-31333 -2-

identification. We conclude, based on a totality of the

circumstances, that the photographic line-up did not pose a very

substantial likelihood of irreparable misidentification. See

United States v. Honer, 225 F.3d 549, 552-53 (5th Cir. 2000);

United States v. Brown, 217 F.3d 247, 259 (5th Cir. 2000), cert.

denied, 531 U.S. 1155 (2001), and vacated and remanded on other

grounds, 531 U.S. 1136 (2001).

Hays challenges the jury’s guilty verdict as to count one of

the indictment on grounds of inconsistency. The jury’s verdict

on counts one and two of the indictment, even if inconsistent,

does not warrant reversal because the evidence is sufficient to

sustain Hays’s conviction as to the conspiracy count, the charge

for which Hays was convicted. See United States v. Straach, 987

F.2d 232, 240-41 (5th Cir. 1993); United States v. Gieger, 190

F.3d 661, 664 (5th Cir. 1999).

Hays argues that the district court erred in refusing to

grant him a decrease in his base offense under U.S.S.G. § 3B1.2.

That adjustment is “designed to be applied infrequently [and]

. . . is generally appropriate only where a defendant was

substantially less culpable than the average participant.”

United States v. Gallardo-Trapero, 185 F.3d 307, 324 (5th Cir.

1999)(citations and internal quotation marks omitted). The

district court’s finding as to Hays’s role in the offense was not

clearly erroneous. See Burton v. United States, 237 F.3d 490,

503 (5th Cir. 2000).

AFFIRMED.