United States v. Anthony Pope , 538 F. App'x 580 ( 2013 )


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  •      Case: 12-50958       Document: 00512343938         Page: 1     Date Filed: 08/16/2013
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT  United States Court of Appeals
    Fifth Circuit
    FILED
    August 16, 2013
    No. 12-50958
    Summary Calendar                        Lyle W. Cayce
    Clerk
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee
    v.
    ANTHONY SCOTT POPE, also known as Alabama,
    Defendant-Appellant
    Appeal from the United States District Court
    for the Western District of Texas
    USDC No. 7:11-CR-365-1
    Before KING, DeMOSS, and GRAVES, Circuit Judges.
    PER CURIAM:*
    Anthony Scott Pope was convicted following a three-day jury trial of
    conspiracy to distribute and possess with intent to distribute 50 grams or more
    of methamphetamine (actual) and 500 grams or more of a mixture and substance
    containing a detectable amount of methamphetamine.                     The district court
    sentenced Pope to life in prison and a 10-year term of supervised release.
    A hearing was held on Pope’s motion to suppress evidence that was seized
    following the stop of a vehicle in which he was a passenger. Pope argues that
    *
    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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
    Case: 12-50958     Document: 00512343938     Page: 2   Date Filed: 08/16/2013
    No. 12-50958
    the district court erred in finding that a tip from an informant provided
    reasonable suspicion to stop the vehicle on the belief that its occupants had
    conducted a drug transaction within the previous few hours. Pope does not
    challenge the district court’s alternative finding that the informant’s controlled
    buy of methamphetamine from Pope gave officers probable cause to stop the
    vehicle to arrest Pope for distribution of methamphetamine. Pope has thus
    effectively abandoned any challenge to the district court’s determination that the
    initial stop was constitutionally valid. See United States v. Scroggins, 
    599 F.3d 433
    , 447 (5th Cir. 2010); see also United States v. Hardy, 101 F. App’x 959, 960
    (5th Cir. 2004) (unpublished).
    Pope next challenges the denial of his motion for a continuance. We
    review that denial for an abuse of discretion, looking at the totality of the
    circumstances. See United States v. Stalnaker, 
    571 F.3d 428
    , 439 (5th Cir. 2009).
    On the morning of trial, Pope learned that the chemist who initially tested a
    drug sample for the Government in his case had been under investigation for
    drug use. The Government learned of the problem with the chemist the week
    before and had the evidence retested by a new chemist who testified at trial.
    Pope sought a continuance and now contends that he was deprived of an
    opportunity to find out more about the investigation of the first chemist and
    that, as a result, he was unable to effectively cross-examine the new chemist or
    properly challenge the evidence that was tested. Pope’s assertions of prejudice
    stemming from the district court’s denial of his request for a continuance are
    merely speculative and, in light of the totality of the circumstances–including
    counsel’s cross-examination of the new chemist regarding the minor differences
    in the findings–do not demonstrate any abuse of discretion. See 
    id. at 439
    ;
    United States v. German, 
    486 F.3d 849
    , 854 (5th Cir. 2007).
    Pope challenges the sufficiency of the evidence adduced at trial to support
    the jury’s finding that the conspiracy involved the amount of methamphetamine
    charged in the indictment. Pope preserved this issue by making a timely motion
    2
    Case: 12-50958      Document: 00512343938       Page: 3    Date Filed: 08/16/2013
    No. 12-50958
    for a judgment of acquittal under Rule 29 of the Federal Rules of Criminal
    Procedure. See United States v. Rose, 
    587 F.3d 695
    , 702 (5th Cir. 2009). We
    consider the evidence in the light most favorable to the prosecution, drawing all
    inferences and making all credibility choices in support of the verdict. See
    Jackson v. Virginia, 
    443 U.S. 307
    , 319 (1979); United States v. Moore, 
    708 F.3d 639
    , 645 (5th Cir. 2013). If that evidence could lead “any rational trier of fact . . .
    [to] have found the essential elements of the crime beyond a reasonable doubt,”
    then the evidence is sufficient to support the conviction. Jackson, 
    443 U.S. at 319
    . Considering the testimony regarding only transactions in which Pope
    obtained methamphetamine from his suppliers, a jury reasonably could have
    concluded that those transactions involved almost 1,100 grams of a mixture
    containing a detectable amount of the drug. Additionally, given the evidence
    regarding the purity of samples that were tested and the total amount
    attributable to Pope, a rational juror could have found beyond a reasonable
    doubt that Pope’s offense involved 50 grams of actual methamphetamine.
    Finally, Pope argues that the district court erred by holding him
    accountable for 1.06 kilograms of actual methamphetamine and assessing an
    offense level of 36 when calculating his guidelines sentencing range. We need
    not decide whether the district court erred, because Pope was subject to a
    statutorily mandated life sentence due to his prior felony drug convictions, and
    that sentence became the guidelines range. See 
    21 U.S.C. § 841
    (b)(1)(A)(viii);
    U.S.S.G. § 5G1.1(b). Any error there may have been in determining drug
    quantity and base offense level did not affect the selection of his sentence and
    was harmless. See Williams v. United States, 
    503 U.S. 193
    , 202-03 (1992); see
    also United States v. Cervantes, 
    706 F.3d 603
    , 620 n.8 (5th Cir. 2013).
    AFFIRMED.
    3
    

Document Info

Docket Number: 12-50958

Citation Numbers: 538 F. App'x 580

Judges: King, Demoss, Graves

Filed Date: 8/16/2013

Precedential Status: Non-Precedential

Modified Date: 10/19/2024