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United States v. Green , 69 F. App'x 612 ( 2003 )


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  •                           UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,               
Plaintiff-Appellee,
v.                             No. 03-4156
TROY J. GREEN,
Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of West Virginia, at Martinsburg.
W. Craig Broadwater, District Judge.
(CR-02-26)
Submitted: June 10, 2003
Decided: July 7, 2003
Before WIDENER, LUTTIG, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Matthew A. Victor, VICTOR, VICTOR & HELGOE, L.L.P.,
Charleston, West Virginia, for Appellant. Thomas E. Johnston,
United States Attorney, Thomas O. Mucklow, Assistant United States
Attorney, Martinsburg, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2                      UNITED STATES v. GREEN
OPINION
PER CURIAM:
Troy Green appeals his convictions and the 200-month sentence
imposed by the district court after a jury found him guilty of conspir-
acy to distribute fifty grams or more of crack cocaine, in violation of
    21 U.S.C. §§ 841
    , 846 (2000), distribution of crack cocaine within
1000 feet of a school, in violation of
    21 U.S.C. §§ 841
    , 860 (2000),
and distribution of crack cocaine, in violation of
    21 U.S.C. § 841
    .
Finding no reversible error, we affirm.
On appeal, Green first contends the evidence was insufficient to
support his conspiracy conviction. To determine whether there was
sufficient evidence to support a conviction, we consider whether, tak-
ing the evidence in the light most favorable to the Government, any
reasonable trier of fact could have found the defendant guilty beyond
a reasonable doubt. Glasser v. United States,
    315 U.S. 60
    , 80 (1942).
We do not weigh the evidence or determine the credibility of the wit-
nesses. Rather, the jury verdict must be upheld if there is substantial
evidence to support the verdict. Id.; United States v. Murphy,
    35 F.3d 143
    , 148 (4th Cir. 1994). A defendant challenging the sufficiency of
the evidence to support his conviction faces a heavy burden. United
States v. Beidler,
    110 F.3d 1064
    , 1067 (4th Cir. 1997). Green fails to
meet this burden.
Green also challenges the district court’s application of the Sen-
tencing Guidelines, contending the district court erred in calculating
the drug amounts attributable to him at sentencing. The district
court’s determination of the drug quantity attributable to a defendant
is a factual finding reviewed for clear error. See United States v. Ran-
dall,
    171 F.3d 195
    , 210 (4th Cir. 1999). We find no clear error in the
district court’s determination of the drug quantity attributable to
Green.
Green also contends the district court erred in imposing a two-point
enhancement for obstruction of justice pursuant to U.S. Sentencing
Guidelines Manual § 3C1.1 (2002). We review for clear error. United
States v. Puckett,
    61 F.3d 1092
    , 1095 (4th Cir. 1995). We find no
clear error in the district court’s imposition of this enhancement.
UNITED STATES v. GREEN                         3
Finally, Green contends the district court erred in refusing to allow
him to argue at closing that because the Government did not call any
of his co-conspirators as witnesses, the jury could infer their testi-
mony would have been exculpatory to Green. When a party has it
peculiarly within his power to produce witnesses whose testimony
would elucidate issues important to the trial, that he does not do so
creates the presumption that the testimony, if produced, would be
unfavorable. United States v. Brooks,
    928 F.2d 1403
    , 1412 (4th Cir.
1991) (citing United States v. Rollins,
    862 F.2d 1282
    , 1297 (7th Cir.
1988)). The contested witnesses, however, were equally available to
Green and the Government. Green could have subpoenaed them to
appear and examined them at trial but did not do so, nor did he
request a "missing witness" instruction at trial. Thus, Green was not
entitled to argue to the jury that inferences adverse to the Govern-
ment’s case should be drawn from the prosecution’s failure to call any
of Green’s co-conspirators as trial witnesses. See Brooks, 928 at
1411-12.
Accordingly, we affirm Green’s convictions and sentence. We dis-
pense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED