United States v. Brooks , 82 F. App'x 291 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 03-4106
JOESTILLES DEMARCO BROOKS,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of West Virginia, at Huntington.
Robert C. Chambers, District Judge.
(CR-02-92-ALL)
Submitted: November 6, 2003
Decided: November 24, 2003
Before WIDENER, MICHAEL, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Thomas J. Gillooly, Charleston, West Virginia, for Appellant. Kasey
Warner, United States Attorney, Miller A. Bushong, III, Assistant
United States Attorney, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. BROOKS
OPINION
PER CURIAM:
Joestilles Demarco Brooks appeals his jury conviction for conspir-
acy to distribute in excess of fifty grams of cocaine base in violation
of 21 U.S.C. § 846 (2000) and his 360-month term of imprisonment.
We affirm.
Brooks first contends that the district court erred in refusing to sub-
mit his jury instruction regarding multiple conspiracies to the jury.
Brooks’s proposed instruction informed the jury that even if it found
Brooks was a member of another on-going conspiracy, it could not
return a verdict of guilty unless it found Brooks was a member of the
conspiracy charged in the indictment. The district court found that
Brooks’s instruction was not necessary because the evidence estab-
lished neither separate drug conspiracies nor an illegal gambling con-
spiracy in which Brooks testified he was involved.
We review the denial of a proposed jury instruction for an abuse
of discretion. United States v. Seidman, 156 F.3d 542, 551 (4th Cir.
1998), but we review the trial court’s decision not to instruct the jury
regarding multiple conspiracies for clear error. United States v. Mills,
995 F.2d 480, 485 (4th Cir. 1993). We find the district court did not
clearly err in refusing to instruct on multiple conspiracies. See United
States v. Howard, 115 F.3d 1151, 1157 (4th Cir. 1997); United States
v. Kennedy, 32 F.3d 876, 884 (4th Cir. 1994). Likewise, the court’s
instruction did not prevent Brooks from presenting his theory of the
case.
Brooks next claims the court constructively amended his indict-
ment in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000),
when it instructed the jury that the evidence need not establish a spe-
cific amount or quantity of a controlled substance, but only that
Brooks conspired to distribute more than fifty grams of cocaine base,
or "at least" fifty grams of cocaine base. Because Brooks did not
object to the court’s instruction at trial, we review his claim for plain
error. See Fed. R. Crim. P. 52(b); United States v. Olano, 507 U.S.
725, 733-37 (1993).
UNITED STATES v. BROOKS 3
We find no such error. While the indictment stated that Brooks
conspired with intent to distribute "more than 50 grams of cocaine
base" rather than "at least" fifty grams, the court’s instruction was
fully in keeping with 21 U.S.C. § 841(b)(1)(A)(iii) (2000). Moreover,
the Government established by "overwhelming and essentially uncon-
troverted," evidence, see United States v. Cotton, 535 U.S. 625, 633
(2002) (internal quotation marks omitted), that Brooks was responsi-
ble for between 500 grams to 1.5 kilograms of cocaine base during
the course of the conspiracy. Thus, variation between the indictment
and court’s instruction did not affect Brooks’s substantial rights. Even
if there were error, we conclude it did not seriously affect the fairness,
integrity, or public reputation of the judicial proceeding.
Accordingly, we affirm Brooks’s conspiracy conviction and his
sentence. We deny Brooks’s motions for leave to file two pro se sup-
plemental briefs because he is represented by counsel who has fully
briefed his appeal. We dispense 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