United States v. Loren W. May, Sr.

476 F.3d 638, 2007 U.S. App. LEXIS 3259, 2007 WL 447937
Court of Appeals for the Eighth Circuit·Decided February 13, 2007·No. 06-2214·Published·Cited by 32 cases

Opinions

GRUENDER, Circuit Judge.

A jury found Loren W. May, Sr. (“May”) guilty of conspiracy to distribute 50 grams or more of cocaine base (“crack cocaine”) in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A) and 846. May appeals, arguing that the evidence was insufficient to support the conviction. For the reasons discussed below, we affirm the entry of judgment on the verdict by the district court.1

[640]*6401. BACKGROUND

Law enforcement officers executed a search warrant on a St. Joseph, Missouri residence owned by May’s father, Oscar May (“Oscar”), in March 2004. May, his sons Jorael and Derrick May, Karlo Ginn and five other people were found inside. The officers recovered approximately 119 grams of crack cocaine from various locations throughout the residence, as well as drug paraphernalia, an electronic scale and a loaded firearm. May was discovered in a corner of the basement with his pants pockets pulled out. May was charged, along with nine other individuals, with conspiracy to distribute crack cocaine.

At May’s trial, Ginn served as a cooperating witness for the Government, testifying that he and Jorael routinely purchased cocaine in Kansas City, converted it to crack cocaine and sold it in St. Joseph from Oscar’s residence. Ginn testified that he personally observed May selling crack cocaine hundreds of times at the residence over a period of several years. According to Ginn, May usually obtained the crack cocaine for resale from his sons, although occasionally he obtained it from Ginn or another source. Ginn could not give a reliable estimate of the total amount of crack cocaine he had seen May sell.

Lawanda Roath, who described herself as Oscar’s girlfriend, testified that she had purchased crack cocaine from May at the residence on numerous occasions. Roath agreed to work as a paid informant for the St. Joseph police. On November 16 and November 23, 2004, while wearing a concealed audio recording device, she purchased small quantities (roughly one-quarter and one-tenth of a gram) of crack cocaine from May at the residence. The recording of the second purchase was played for the jury, with Roath identifying her own voice and May’s. On the recording, May stated that Jorael recently had obtained 19 ounces (approximately 530 grams) of crack cocaine and that May could procure the drug from Jorael to sell to her. However, May did not succeed in contacting Jorael and instead used an unidentified source to provide the crack cocaine for Roath on that occasion.

At the conclusion of the Government’s evidence, May moved for judgment of acquittal. The district court denied the motion, and May presented no evidence. The jury returned a guilty verdict. At sentencing, the district court found May responsible for at least 500 grams but less than 1.5 kilograms of cocaine base, yielding a base offense level of 36. See United States Sentencing Guidelines § 2Dl.l(c)(2). The district court also applied a § 3B1.2 two-level minor role reduction and declined to apply a § 2D 1.1(b)(1) two-level enhancement for the firearm in the residence, resulting in a total offense level of 34. With a criminal history category of IV, the advisory guidelines range was 210 to 262 months. After considering arguments based on the other sentencing factors in 18 U.S.C. § 3553(a), the district court imposed a sentence at the high end of the advisory range.2

II. DISCUSSION

On appeal, May renews his argument that the evidence was insufficient to support his conviction. May’s motion for judgment of acquittal at the close of the Government’s evidence serves to preserve this argument for appeal. United States v. Vinton, 429 F.3d 811, 815 (8th Cir.2005). “We review the sufficiency of the evidence [641] de novo, viewing evidence in the light most favorable to the government, resolving conflicts in the government’s favor, and accepting all reasonable inferences that support the verdict.” United States v. Washington, 318 F.3d 845, 852 (8th Cir.2003). “We may reverse only if no reasonable jury could have found the defendant guilty beyond a reasonable doubt.” Id.

To obtain a conviction for conspiracy, the Government must prove (1) the existence of an agreement to achieve an illegal purpose, (2) the defendant’s knowledge of the agreement, and (3) the defendant’s knowing participation in the agreement. United States v. Johnson, 439 F.3d 947, 954 (8th Cir.2006). The agreement may be a tacit understanding rather than a formal, explicit agreement. Id. In the instant case, there was sufficient evidence to show that May was a member of a conspiracy to distribute 50 or more grams of crack cocaine. Ginn testified that May procured crack cocaine from his sons and other sources and resold it at the residence literally hundreds of times. In addition, Roath testified that she made multiple purchases from May at the residence, including two controlled purchases. Roath also testified to the authenticity of a recording of the second controlled purchase in which May asserted he could obtain crack cocaine from his son Jorael for resale because Jorael recently had obtained 19 ounces (more than 500 grams). This evidence is more than sufficient to allow a reasonable jury to conclude beyond a reasonable doubt that at least a tacit agreement to distribute crack cocaine existed and that May knowingly participated in that agreement with Jorael, Ginn and the others. See United States v. Detweiler, 454 F.3d 775, 777 (8th Cir.2006) (finding sufficient evidence to support a conviction for conspiracy to distribute narcotics where the defendant “repeatedly purchased methamphetamine from [a regular source], then sold methamphetamine to regular customers”).

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United States v. Loren W. May, Sr., 476 F.3d 638, 2007 U.S. App. LEXIS 3259, 2007 WL 447937 (8th Cir. 2007).

476 F.3d 638 (United States v. Loren W. May, Sr.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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