United States v. Wright

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 01-41320

Summary Calendar

UNITED STATES OF AMERICA Plaintiff-Appellee,

versus

JOHNNY WRIGHT,

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Texas (01-CR-721)

August 16, 2002

Before JOLLY, HIGGINBOTHAM, and SMITH, Circuit Judges.

PER CURIAM:*

Johnny Wright appeals his conviction and sentence for

possession with intent to distribute less than 50 kilograms of

marijuana, in violation of 21 U.S.C. § 841. He argues that

prosecutorial misconduct prejudicially affected his substantial

rights, that the district court erred in denying his request for a

minor role adjustment, and that 21 U.S.C. § 841 is

unconstitutional. We affirm.

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

inadmissible hearsay testimony from Agent Michelle Williams,

attesting to Wright’s knowledge of the marijuana in the vehicle he

was driving. Although the testimony should not have been elicited,

it did not prejudice Wright’s substantive rights.1 The district

court gave a curative instruction, and the hearsay testimony was

duplicative of testimony given later in the trial. Given the

substantial evidence of Wright’s guilt, we cannot say that the

prosecutor’s comments prejudiced Wright’s substantive rights.

Wright also alleges that the prosecutor elicited hearsay when

she asked Alfredo Ortiz whether he told Agent Williams everything

he knew. As Wright notes, Ortiz’s statement falls under the rule

defining prior consistent statements as non-hearsay only if Ortiz

made the statement to Agent Williams before a motive to fabricate

arose.2 Because defense counsel did not object, we review only for

plain error.3 Ortiz said he was not aware at the time of his

statement to Agent Williams that Wright had implicated him, and he

denied any revenge motives. There was no evidence that Ortiz had

entered into any cooperation agreement at the time he was

interviewed by Agent Williams. Thus it is not obvious that Ortiz’s

statement was made after a motive to fabricate arose, and there is

1 See United States v. Lankford, 196 F.3d 563, 574 (5th Cir. 1999) (outlining two-step process for evaluating prosecutorial misconduct). 2 FED. R. EVID. 801(d)(1)(B). 3 United States v. Williams, 264 F.3d 561, 576 (5th Cir. 2001). no plain error here.

Wright also argues that the prosecutor improperly attempted to

elicit from Agent Williams evidence of his post-arrest silence.

Agent Williams testified to the contrary and was precluded from

answering the offending question when the judge noted that the

question was improper.

Wright further alleges that he should have received a

two-level downward adjustment under the Sentencing Guidelines for

being a minor participant in criminal activity. We review a judge's

finding in this regard under a clearly erroneous standard.4 A

defendant has the burden of showing that he is entitled to the

downward adjustment,5 and Wright failed to show that he was

substantially less culpable than Ortiz and Barron in the

transportation of 27 kilograms of marijuana. The denial of the

minor role adjustment was not clear error.

Furthermore, although Wright claims that the provisions of 21

U.S.C. § 841(a) and (b) are unconstitutional under Apprendi v. New

Jersey,6 his argument is foreclosed by our decision in United

States v. Slaughter.7

AFFIRMED.

4 United States v. Garcia, 242 F.3d 593, 598 (5th Cir. 2001). 5 Id. 6 530 U.S. 466 (2000). 7 238 F.3d 580, 582 (5th Cir. 2000).