United States v. Sloan ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 94-5924
JEREMIAH WELDON SLOAN,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5558
REAON O'NEIL MOULTRY,
Defendant-Appellant.
Appeals from the United States District Court
for the Western District of North Carolina, at Charlotte.
Graham C. Mullen, District Judge.
(CR-93-28-MU)
Submitted: August 13, 1996
Decided: October 29, 1996
Before WILKINS, NIEMEYER, and MICHAEL, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
Jesse J. Waldon, Jr., JESSE J. WALDON, JR., P.A., Charlotte, North
Carolina; P. Mercer Cauley, Charlotte, North Carolina, for Appel-
lants. Mark T. Calloway, United States Attorney, Robert J. Higdon,
Jr., Assistant United States Attorney, Charlotte, North Carolina, for
Appellees.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Jeremiah Weldon Sloan and Reaon O'Neil Moultry were convicted
by a jury of conspiracy to distribute cocaine and crack cocaine and
to possess both with intent to distribute, 21 U.S.C.A. § 846 (West
Supp. 1996), as well as one count of aiding and abetting the posses-
sion of crack for distribution. 21 U.S.C.A. § 841 (West 1981 & Supp.
1996). Sloan also was convicted of three counts of using and carrying
a firearm in a drug trafficking crime. 18 U.S.C.A.§ 924(c) (West
Supp. 1996). Sloan received a life sentence, a consecutive sentence
of five years, and two consecutive twenty-year sentences. Moultry
was sentenced to a term of 324 months. Both appeal their convictions
and sentences.
First, Appellants contend that the government failed to prove one
conspiracy as charged in the indictment because the evidence at trial
showed multiple conspiracies instead. A conspiracy conviction may
be reversed on the ground that the evidence varied materially from the
offense charged in the indictment by showing multiple conspiracies
rather than a single conspiracy if actual prejudice to the defendant's
substantial rights resulted. United States v. Kennedy, 32 F.3d 876, 883
(4th Cir. 1994) (citations omitted), cert. denied, ___ U.S. ___, 63
U.S.L.W. 3563 (U.S. Jan. 23, 1995) (No. 94-6500). To show actual
prejudice, "an appellant must prove that ``there are so many defen-
dants and so many separate conspiracies before the jury' that the jury
was likely to transfer evidence from one conspiracy to a defendant
involved in an unrelated conspiracy." Id. (quoting United States v.
2
Caporale, 806 F.2d 1487, 1500 (11th Cir. 1986), cert. denied, 482
U.S. 917 and 483 U.S. 1021 (1987)).
In this case, there was no likelihood that the evidence of other drug
conspiracies would prejudice Sloan and Moultry. The only evidence
offered by members of the Cecil Jackson Gang and the Mustang Gang
concerned their knowledge of and purchases of crack from Sloan's
organization. With only two defendants and straightforward evidence
of only two related conspiracies, the case was not too complex for the
jury to evaluate properly the evidence against Sloan and Moultry.
Therefore, this claim is without merit.
Next, Sloan and Moultry contest the enhancements they each
received for possession of firearms under USSG § 2D1.1(b)(1).1 They
contend that the evidence did not support the enhancement. Because
two witnesses testified that Moultry carried firearms while selling
drugs, including "a .357" and a "9 millimeter," the district court did
not clearly err in finding that the enhancement applied in his case. In
sentencing Sloan, the court did not base the enhancement on any of
the firearms for which he was convicted under § 924(c), but on the
presence of additional firearms in the course of the conspiracy.2 While
the sentencing guidelines do not permit an enhancement under USSG
§ 2D1.1(b)(1) where a defendant has been convicted under § 924(c)
for the same weapon, two circuits have held that a defendant con-
victed under § 924(c) may receive the enhancement for a co-
conspirator's weapon. See United States v. Rodriguez, 65 F.3d 932,
933 (11th Cir. 1995), cert. denied, #6D6D 6D# U.S. ___, 64 U.S.L.W. 3640(U.S. Mar. 25, 1996) (No. 95-7936); United States v. Washington, 44
F.3d 1271, 1280-81 (5th Cir.), cert. denied, ___ U.S. ___, 63
U.S.L.W. 3832 (U.S. May 22, 1995) (No. 94-8900). As discussed
above, there was evidence that Moultry carried a weapon while traf-
ficking in drugs. In addition, co-conspirator Rudolph Black testified
at trial that he often carried a firearm, as did his brother, co-
conspirator Arthur McClinton. The enhancement was thus justified.
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1 United States Sentencing Commission, Guidelines Manual (Nov.
1994).
2 When Sloan's apartment was searched in February 1992, a shotgun
was found as well as an Intratech 9 mm pistol.
3
The convictions and sentences are therefore affirmed. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
4