United States v. Lee

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-40992 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

TOMMY WAYNE LEE, also known as Black,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 9:00-CR-48-1 -------------------- April 2, 2002

Before DAVIS, BENAVIDES, and CLEMENT, Circuit Judges.

PER CURIAM:*

Tommy Wayne Lee appeals his convictions and sentences for drug

trafficking offenses involving cocaine and marijuana. For the

following reasons, the judgment of the district court is AFFIRMED.

The district court did not abuse its discretion in denying

Lee’s motion to sever the cocaine-related counts from the

marijuana-related counts. See United States v. Fortenberry, 914

F.2d 671, 675 (5th Cir. 1990). In light of the court’s limiting

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

instructions both during and after the presentation of evidence,

Lee has failed to show that the jury was unable to separately

consider the cocaine conspiracy evidence and the marijuana

conspiracy evidence or that he otherwise suffered clear prejudice.

Id.

Additionally, the district court did not clearly err in

denying Lee’s Batson challenge to the Government’s striking of a

black potential juror. See United States v. Denman, 100 F.3d 399,

404 (5th Cir. 1996); Batson v. Kentucky, 476 U.S. 79 (1986). The

voir dire record supports the district court’s finding that the

prosecutor’s race-neutral explanation for striking the juror was

credible. See id.; Purkett v. Elem, 514 U.S. 765, 768 (1995).

The record reflects that there was sufficient evidence to

support Lee’s convictions. Considering the evidence in the light

most favorable to the Government, a reasonable trier of fact could

have found that the evidence established the essential elements of

the offenses beyond a reasonable doubt. See United States v.

Ortega-Reyna, 148 F.3d 540, 543 (5th Cir. 1998). This

determination is not altered by Lee’s assertion that the

Government’s case was based on unreliable witnesses testifying in

exchange for lesser sentences. Even the uncorroborated testimony

of a co-conspirator who made a plea agreement with the Government

will support a conviction as long as the testimony is not

incredible or insubstantial on its face, and the testimony of Lee’s -3-

coconspirators is not facially incredible or insubstantial. See

United States v. Osum, 943 F.2d 1394, 1405 (5th Cir. 1991).

There was no abuse of the district court’s broad discretion in

admitting extrinsic-act evidence regarding Lee’s participation in

a 1995 drug offense. See United States v. Parziale, 947 F.2d 123,

129 (5th Cir. 1991). The evidence was admissible under FED. R.

EVID. 404(b) because Lee placed his intent at issue in this case by

pleading not guilty. See United States v. Chavez, 119 F.3d 342,

346 (5th Cir. 1997). Furthermore, the evidence was admissible

under FED. R. EVID. 403 because its high probative value

substantially outweighed the danger of unfair prejudice. Id. at

346-47.

There was also no error in the district court’s decision that

Lee’s offenses should be grouped for sentencing purposes. See

United States v. Hoster, 988 F.2d 1374, 1382 (5th Cir. 1993). Where

the offenses involve substantially the same harm and the offense

level is substantially determined on the basis of the quantity of

drugs, as here, the offenses shall be grouped. U.S.S.G. §

3D1.2(d).

Lee contends that the district court erred in determining that

he failed to satisfy the criteria for an offense-level reduction

under U.S.S.G. § 2D1.1(b)(6). We disagree. See United States v.

Miller, 179 F.3d 961, 963-64 (5th Cir. 1999). Lee has not shown

that he truthfully provided to the Government all information and

evidence he has concerning his offenses or offenses that were part -4-

of the same course of conduct or of a common scheme or plan. See

U.S.S.G. §§ 2D1.1(b)(6), 5C1.2(5).

Finally, there is no merit to Lee’s assertion that the

district court erred in assessing a Section 3B1.1 upward adjustment

for his leadership role in the cocaine conspiracy. The record

shows that the district court’s application of Section 3B1.1 was

based on Lee’s leadership role in the marijuana conspiracy, not the

cocaine conspiracy.

AFFIRMED.