United States v. Slusher

8 F. App'x 343
CourtCourt of Appeals for the Sixth Circuit
DecidedMarch 16, 2001
DocketNo. 00-5092
StatusPublished

This text of 8 F. App'x 343 (United States v. Slusher) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Slusher, 8 F. App'x 343 (6th Cir. 2001).

Opinion

Patricia Smallwood Slusher, a federal prisoner, appeals her conviction and sentence for conspiracy to possess with intent to distribute 792 Tylox capsules (which contain Oxycodone, a Schedule II controlled substance) in violation of 21 U.S.C. § 846. Both parties have expressly waived oral argument and this panel unanimously agrees that oral argument is not needed in this case. Fed. R.App. P. 34(a).

A jury found Slusher guilty of the single count described above. Her motion for a new trial, on the ground that the jury’s verdict was inconsistent with the evidence, was denied. The district court sentenced Slusher on January 14, 2000, to 70 months in prison and three years of supervised release. The total offense level included a two-level reduction for a minor role in the offense. An amended judgment was entered on January 24, 2000.

On appeal, Slusher argues that: (1) the district court abused its discretion in failing to grant a new trial based upon insufficient evidence; (2) the district court abused its discretion by failing to reduce Slusher’s offense level by four under USSG § 3B1.2(a); and (3) the district court abused its discretion by failing to grant a downward departure under USSG § 5K2.13 based upon diminished capacity. Upon review, we affirm the district court’s judgment.

Although Slusher’s first issue specifically attacks the district court’s denial of her motion for a new trial, which is reviewed for an abuse of discretion, see United States v. Hartsel, 199 F.3d 812, 815 (6th Cir.1999), cert. denied, 529 U.S. 1070, 120 S.Ct. 1679, 146 L.Ed.2d 487 (2000), it is clear that she is actually challenging the sufficiency of the evidence. When reviewing a claim of insufficient evidence this court determines “ ‘whether, taking the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” United States v. Prince, 214 F.3d 740, 746 (6th Cir.) (quoting United States v. Haun, 90 F.3d 1096, 1100 (6th Cir.1996)), cert. denied, 531 U.S. 974, 121 S.Ct. 417, 148 [345]*345L.Ed.2d 322 (2000). Every reasonable inference is drawn in the government’s favor. United States v. Miller, 161 F.3d 977, 985 (6th Cir.1998). In addition, “[s]ufficiency-of-the-evidence appeals are ‘no place ... for arguments regarding a government witness’s lack of credibility.’ ” United States v. Hernandez, 227 F.3d 686, 694 (6th Cir.2000) (quoting United States v. Talley, 164 F.3d 989, 996 (6th Cir.), cert. denied, 526 U.S. 1137, 119 S.Ct. 1793, 143 L.Ed.2d 1020 (1999)); see also Miller, 161 F.3d at 985.

In order to obtain a conviction under 21 U.S.C. § 846, “the government must prove the existence of an agreement to violate the drug laws and that each conspirator knew of, intended to join, and participated in the conspiracy.” United States v. Gaitan-Acevedo, 148 F.3d 577, 586 (6th Cir.1998). Proof of a formal agreement is not necessary; a tacit or mutual understanding will suffice. United States v. Ledezma, 26 F.3d 636, 640 (6th Cir.1994). A conspiracy may be inferred from circumstantial evidence that can reasonably be interpreted as participation in the common plan. Id. Furthermore, the defendant need not have knowledge of every phase of the conspiracy; it is enough that she knew her criminal conduct was in some way connected to the success of the collective venture. Gaitan-Acevedo, 148 F.3d at 586.

When the proof presented at trial is examined in this light, it is clear that sufficient evidence does indeed exist to sustain Slusher’s conviction. The testimony, particularly that of coconspirator Catherine Brock, is clearly sufficient to establish all of the elements for a drug conspiracy conviction. Recognizing this, Slusher argues that Brock’s prior inconsistent statements rendered her trial testimony unreliable. However, as already noted, the issue of witness credibility is within the province of the jury which, in this case — and after cross-examination regarding the prior statements — chose to believe Brock. This court has found the testimony of one cooperating eoconspirator sufficient to sustain a conspiracy conviction. See United States v. Ward, 190 F.3d 483, 488 (6th Cir.1999), cert. denied, 528 U.S. 1118, 120 S.Ct. 940, 145 L.Ed.2d 817 and 529 U.S. 1028, 120 S.Ct. 1440,146 L.Ed.2d 328 (2000). Slusher’s first issue on appeal is without merit.

Slusher next argues that the district court erred in denying her motion for a four-level reduction in offense level as a minimal participant under USSG § 3B1.2(a). The defendant bears the burden of proving a mitigating role by a preponderance of the evidence. United States v. Roberts, 223 F.3d 377, 379 (6th Cir.2000). While this court has often stated that a district court’s denial of a mitigating role reduction is reviewed for clear error, it has also explained that the two-part standard of review used in the context of aggravating role enhancements is equally appropriate in the context of mitigating role adjustments. Id. at 379-80. Under that approach, the district court’s factual findings are reviewed for clear error while its legal conclusions are reviewed de novo. Id. at 380. Slusher cannot prevail under either standard.

At sentencing, Slusher requested a reduction under § 3B1.2 as “either a minimal participant ... or a minor participant” on the ground that all she did was to make an introduction. In its ruling, the district court noted that the government had no objection to a two-level minor-role reduction. The court stated, however, that it did not think either that Slusher qualified for a minimal role reduction or that her conduct fell between the two. The district court’s finding that Slusher’s role in the offense was minor rather than minimal is not clearly erroneous. To qualify [346]*346for a minor role reduction, “a defendant must be less culpable than most other participants and substantially less culpable than the average participant.” United States v. Owusu,

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8 F. App'x 343, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-slusher-ca6-2001.