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United States v. Fisher , 88 F. App'x 662 ( 2004 )


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  • Vacated by Supreme Court, January 24, 2005
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,                
Plaintiff-Appellee,
v.                                No. 03-4259
TERRANCE LEROY FISHER,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Wilmington.
W. Earl Britt, Senior District Judge.
(CR-02-103)
Submitted: February 9, 2004
Decided: March 1, 2004
Before WIDENER and SHEDD, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
Geoffrey W. Hosford, HOSFORD & HOSFORD, P.L.L.C., Wilming-
ton, North Carolina, for Appellant. Frank D. Whitney, United States
Attorney, Anne M. Hayes, Winnie Jordan Reaves, Assistant United
States Attorneys, Raleigh, North Carolina, for Appellee.
2                       UNITED STATES v. FISHER
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Terrance Leroy Fisher appeals his conviction and sentence for five
counts of willfully and intentionally distributing cocaine base in vio-
lation of
    18 U.S.C. § 841
    (a) (2000). Fisher raises several issues on
appeal. We affirm.
Fisher asserts that remarks made by the Government during closing
arguments expressed the prosecutor’s personal opinion about the
weight of the evidence and the veracity of witnesses and included an
improper comment about Fisher’s failure to testify. This Court
reviews de novo a claim of prosecutorial misconduct. See United
States v. Ellis,
    121 F.3d 908
    , 927 (4th Cir. 1997). Even if the two
remarks that are challenged on appeal are construed as improper,
Fisher does not, and cannot, demonstrate they misled the jury or prej-
udiced the defense. The issue of credibility was raised by the defense
in closing argument, the remarks were not extensive, and there was
overwhelming proof of Fisher’s guilt. Also, there is no evidence the
Government made the comments to divert attention from the evi-
dence. United States v. Adam,
    70 F.3d 776
    , 780 (4th Cir. 1995). The
language was not intended to be, nor could the jury have naturally and
necessarily taken it to be, a comment on the failure of Fisher to tes-
tify. United States v. Whitehead,
    618 F.2d 523
    , 527 (4th Cir. 1980).
Finally, the district court gave a proper instruction that remarks by
counsel were not evidence. See United States v. Cornett,
    232 F.3d 570
    , 574 (7th Cir. 2000). We find no error resulted from the com-
ments by the Government in closing arguments.
Fisher asserts the district court abused its discretion in its denial of
his motion to use convictions more than ten years old to impeach a
Government witness. See United States v. Carter,
    300 F.3d 415
    , 423-
24 (4th Cir. 2002). Fisher did not attempt to show specific facts estab-
lishing that the probative value of the witness’ convictions substan-
UNITED STATES v. FISHER                        3
tially outweighed the prejudicial effect of introducing the convictions.
United States v. Cavender,
    578 F.2d 528
    , 531-32 (4th Cir. 1978); Fed.
R. Evid. 609(b). We find this claim meritless.
Finally, Fisher argues the district court relied on insufficient and
unreliable evidence to determine he was responsible for 220.7 grams
of cocaine base for sentencing purposes. A sentencing court’s find-
ings regarding the quantity of controlled substances are factual and
will be overturned on appeal only if clearly erroneous. United States
v. D’Anjou,
    16 F.3d 604
    , 614 (4th Cir. 1994). The presentence report
relied on the quantity of drugs purchased in controlled buys and the
debriefing of a confidential informant who engaged in controlled buys
with Fisher and testified at trial about those transactions. Although the
informant’s testimony at trial was not as detailed as the recounting
solicited during the debriefing, it was not contrary to his trial testi-
mony. We find the district court’s adoption of the presentence
report’s computation of quantity was not clearly erroneous. See
United States v. Cook,
    76 F.3d 596
    , 604 (4th Cir. 1996); United States
v. Uwaeme,
    975 F.2d 1016
    , 1018-19 (4th Cir. 1992).
We therefore affirm Fisher’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 in the decisional process.
AFFIRMED