United States v. Ramey

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 11, 2001
• Docket: 00-40777
• Status: Unpublished

Opinion

UNITED STATES COURT OF APPEALS For the Fifth Circuit

No. 00-40777

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

CHARLES EDWARD RAMEY; GARY RICHARD MCCARLEY,

Defendants - Appellants.

Appeals from the United States District Court For the Eastern District of Texas (6:99-CR-76)

June 8, 2001 Before SMITH, DUHÉ, and WIENER, Circuit Judges.

PER CURIAM:1

Appellants Charles Edward Ramey and Gary Richard McCarley

appeal their convictions for conspiracy to manufacture, to possess

with intent to distribute and to distribute methamphetamine in

violation of 21 U.S.C. § 846, and possession with intent to

distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1).

We affirm Ramey’s conviction and dismiss McCarley’s appeal.

McCarley pleads, for the first time in this Court, ineffective

1 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. assistance of his trial counsel. He essentially argues that

counsel was not well prepared for trial and did not discuss the

case with McCarley or recommend acceptance of a plea agreement that

ultimately could have resulted in a lesser sentence. McCarley

supports these claims only by including in his record excerpts self

serving affidavits executed by himself, his mother and his sister.

No motion has been filed to supplement the record on appeal with

these affidavits therefore they are not properly before us. It is

the rule of this Circuit that claims of inadequate representation

of counsel are not determined on direct appeal when the claim has

not been raised in the district court. United States v. McCaskey,

9 F.3d 368, 380 (5th Cir. 1993). If, however, the record is

sufficiently complete for us to evaluate the merits of the claim,

we will consider them on direct appeal. Id. We find the record in

this case is not sufficiently developed and, therefore, decline to

consider the issue.

Ramey contends that the evidence is insufficient to support

his convictions. We review the evidence in the light most

favorable to the verdict, accept the credibility choices and

reasonable inferences made by the jury, and uphold the conviction

if a reasonable jury could have found that the Government proved

the essential elements of the crimes charged beyond a reasonable

doubt. United States v. McCord, 33 F.3d 1434, 1439 (5th Cir. 1995).

To establish guilt under 21 U.S.C. § 846 the Government must

prove existence of an agreement between two or more persons to

2 violate the narcotics law; knowledge of the conspiracy; and

voluntary participation in it. United States v. Mitchell, 31 F.3d

271, 274 (5th Cir. 1994). The jury may infer existence of a

conspiracy from circumstantial evidence. United States v. Thomas,

12 F.3d 1350 (5th Cir. 1994).

To prove violation of 21 U.S.C. § 841(a)(1), the Government

must prove knowing possession of a controlled substance,

methamphetamine in this case, and possession of the methamphetamine

with intent to distribute. United States v. Torres, 114 F.3d 520,

524 (5th Cir. 1997). Possession may be constructive and may result

from possession by another conspirator in furtherance of the

conspiracy under Pinkerton v. United States, 328 U.S. 640 (1946).

The jury was so instructed in this case.

We have carefully reviewed the record and find that the

evidence was more than sufficient to convict on both counts. Ramey

was a supplier of necessary ingredients for the production of

methamphetamine; was present at the house in which the

methamphetamine production occurred while the production was taking

place; his loaded weapon was in the hands of a co-conspirator at

the house when the search warrant was executed.

The court carefully instructed the jury on more than one

occasion that mere presence at the scene would not prove

participation in the conspiracy and that the incriminating

testimony of a cooperating accomplice had to be weighed with great

care. On the record, we are convinced that the Government proved

3 the essential elements of the crimes charged beyond a reasonable

doubt.

Appeal of Gary Richard McCarley is DISMISSED.

The conviction of Charles Edward Ramey is AFFIRMED.