United States v. Johnson

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-30810 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MELVIN JOHNSON also known as Pap-Poo,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Louisiana USDC No. 98-CR-30024-2 -------------------- May 2, 2001

Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

Melvin Johnson appeals his jury conviction of conspiracy to

distribute and to possess with intent distribute cocaine and

crack cocaine. Johnson argues that the testimony from a number

of coconspirators was insufficient to support the conspiracy

conviction, that the Government failed to prove by a

preponderance of the evidence that Johnson was a leader of the

conspiracy warranting a four-level increase to his offense level,

and that the Government did not verify whether Johnson was on

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 99-30810 -2-

probation when he committed the conspiracy thereby warranting the

addition of two criminal history points.

The trial testimony of the coconspirators was sufficient

evidence proving that Johnson was involved in a drug conspiracy

as alleged in count one of the indictment, and we will not review

the credibility of those witnesses. See United States v.

Villegas-Rodriguez, 171 F.3d 224, 228 (5th Cir. 1999); United

States v. Ybarra, 70 F.3d 362, 364 (5th Cir. 1995). The trial

testimony further showed that Johnson was the leader of the

conspiracy, and the district court did not clearly err when it

overruled Johnson’s motion and allowed the four-level increase to

his sentence based upon his role in the offense. See U.S.S.G.

§ 3B1.1(a); United States v. Parker, 133 F.3d 322, 329 (5th Cir.

1998). Furthermore, there was no error with the addition of two

criminal history points based upon Johnson being on probation at

the time he committed the offense of conviction. See U.S.S.G.

§ 4A1.1(d).

AFFIRMED.