United States v. Richard ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS July 14, 2003
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 02-31117
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
LIONEL RICHARD, JR
Defendant - Appellant
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 01-CR-10010-1
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Before KING, Chief Judge, and SMITH and DENNIS, Circuit Judges.
PER CURIAM:*
Lionel Richard, Jr., appeals his jury conviction for
conspiracy to possess with intent to distribute more than 50
grams of cocaine base, marijuana, and codeine; possession with
intent to distribute more than 50 grams of cocaine base; and
possession with intent to distribute codeine. He argues that the
evidence is insufficient to support his convictions. The
evidence established that Richard, James Hampton, and others sold
*
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that this opinion should not be published and is not precedent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.
No. 02-31117
-2-
large amounts of marijuana, cocaine base, and codeine syrup in
Alexandria, Louisiana, from March 1995 through August 1997. The
evidence also established that at the time of Richard’s arrest,
he and Shundas Oden were traveling by bus from Houston, Texas, to
Alexandria, Louisiana, and that Richard had paid Oden to
transport more than 50 grams of cocaine base and approximately
225 milliliters of codeine syrup on this trip. Viewing the
evidence in the light most favorable to the prosecution, a
rational trier of fact could have found that the evidence
established beyond a reasonable doubt that Richard knowingly and
voluntarily conspired with two or more persons to violate the
federal narcotics laws and that he possessed with intent to
distribute more than 50 grams of cocaine base and codeine. See
United States v. Lopez, 74 F.3d 575, 577 (5th Cir. 1996).
Richard argues that the district court abused its discretion
in refusing to strike a prospective juror, Robert Fisher, for
cause because he was a supervisor of prisoners who participated
in the Rapides Parish Sheriff’s Department work release program.
Because Fisher was not a deputy, law enforcement officer, or
jailer, and because he stated that he could be impartial, the
district court did not abuse its discretion in refusing to excuse
Fisher for cause. See United States v. Munoz, 15 F.3d 395,
396-98 (5th Cir. 1994).
Richard argues that the district court erred in not
submitting the precise drug quantity as an issue for the jury.
No. 02-31117
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Because Richard did not raise this issue in the district court,
review is limited to plain error. See United States v.
Rodriguez, 15 F.3d 408, 414-15 (5th Cir. 1994). Richard’s
argument is foreclosed by this court’s precedent. See United
States v. Keith, 230 F.3d 784, 787 (5th Cir. 2000)(Apprendi v.
New Jersey, 530 U.S. 466 (2000), does not apply to cases “in
which a sentence is enhanced within the statutory range based
upon a finding of drug quantity.”). The indictment alleged and
the jury found that the conspiracy and possession offenses
involved more than 50 grams of cocaine base. Because Richard’s
316-months sentence does not exceed the statutory maximum
sentence of life imprisonment for an offense involving more than
50 grams of cocaine base, Apprendi does not apply.
AFFIRMED.