United States v. Salem

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 2, 2001
• Docket: 00-41298
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-41298 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

WILLIAM ALBERT SALEM,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. C-00-CR-118-1 -------------------- June 29, 2001 Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

William Albert Salem appeals his guilty-plea conviction for

aiding and abetting in the possession of marijuana with the

intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1)

& (b)(1)(B), 18 U.S.C. § 2. He first avers that the district

court erred in overruling his objection to the four-level

enhancement he received for playing a leadership role in the

offense, pursuant to U.S.S.G. § 3B1.1(a). The district court’s

determination that Salem played a leadership role because he

organized the transportation of the marijuana and enlisted five

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-41298 -2-

or more other individuals to assist him in the drug

transportation is supported by the record, is not clearly

erroneous, and was sufficient to justify the enhancement under

U.S.S.G. § 3B1.1(a). United States v. Valencia, 44 F.3d 269, 272

(5th Cir. 1995).

Salem contends next that the district court denied him a

fair sentencing hearing by actively intimidating his trial

counsel from pressing his argument that he (Salem) was not a

leader or organizer in the offense for purposes of U.S.S.G.

§ 3B1.1(a). He argues that such intimidation consisted of

threatening to take away his three-point reduction for acceptance

of responsibility. Salem avers that additional intimidation

occurred when the district court (1) interrupted and cut off

counsel’s attempt to present his argument; (2) belittled and

mischaracterized counsel’s objection without allowing counsel to

explain his point; (3) mischaracterized this court’s decision in

United States v. Moeller, 80 F.3d 1053 (5th Cir. 1996); (4)

badgered counsel about the facts of the case without giving

counsel a chance to answer her questions; (5) patronized defense

counsel after getting him to minimize and, in effect, withdraw

his objection; and (6) failed to consider whether he acted as a

manager or supervisor rather than an organizer or leader.

Federal judges have “wide discretion” to control and direct

court proceedings. United States v. Adkins, 741 F.2d 744, 747

(5th Cir. 1984). A district judge may “comment on the evidence,”

may “question witnesses and elicit facts not yet adduced or

clarify those previously presented,” and “may maintain the pace No. 00-41298 -3-

of the [proceeding] by interrupting or cutting off counsel as a

matter of discretion.” United States v. Carpenter, 776 F.2d

1291, 1294 (5th Cir. 1985) (citation and quotation omitted).

We have reviewed the sentencing transcript and conclude that

Salem has failed to establish either judicial misconduct or

prejudice as a result of the court’s responses to counsel’s

objection to the probation department’s recommendation that Salem

receive an increase in his sentence based on his leadership role

in the offense. United States v. Bermea, 30 F.3d 1539, 1569 (5th

Cir. 1994).

The Government has filed a motion to seal its brief. The

motion is GRANTED.

AFFIRMED; GOVERNMENT’S MOTION TO SEAL BRIEF GRANTED.