United States v. Jerome Daniels , 232 F. App'x 611 ( 2007 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-1647
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United States of America, *
*
Appellee, *
*
v. * Appeal from the United States
* District Court for the
Jerome Daniels, * District of Nebraska.
*
Appellant. * [UNPUBLISHED]
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Submitted: May 3, 2007
Filed: May 8, 2007
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Before SMITH, GRUENDER, and SHEPHERD, Circuit Judges.
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PER CURIAM.
Jerome Daniels appeals his conviction and 240-month sentence imposed by the
district court1 after he pleaded guilty to distributing a tenth of a gram of cocaine base,
in violation of 21 U.S.C. § 841, and after a jury found him guilty of a conspiracy to
distribute and possess with intent to distribute at least 500 grams but less than 1.5
kilograms of cocaine base, in violation of 21 U.S.C. §§ 841 and 846. In a brief filed
under Anders v. California, 386 U.S. 738 (1967), counsel challenges the sufficiency
1
The Honorable Lyle E. Strom, United States District Judge for the District of
Nebraska.
of the evidence for the conspiracy conviction and the drug-quantity finding, and the
reasonableness of the sentence.
Following careful review, see United States v. Johnson, 470 F.3d 1234, 1237
(8th Cir. 2006) (evidence must be viewed in light most favorable to government,
accepting all reasonable inferences that support jury’s verdict, and court must affirm
as long as evidence would allow reasonable-minded jury to find defendant guilty
beyond reasonable doubt), and leaving witness-credibility assessments to the jury, see
United States v. Falcon, 477 F.3d 573, 579 (8th Cir. 2007), we conclude there was
ample evidence of at least a tacit understanding among coconspirators to achieve an
illegal purpose, see United States v. Judon, 472 F.3d 575, 582 (8th Cir. 2007);
Johnson, 470 F.3d at 1237. Specifically, the testimony of Officer Jeffrey Gassaway,
the cooperating witnesses, and Daniels himself established that Daniels purchased
from his associates, over a long period of time, small quantities of crack cocaine to
resell. We also hold that a reasonable jury could have concluded beyond a reasonable
doubt that Daniels was responsible for more than 500 grams of cocaine base. See
Johnson, 470 F.3d at 1239. Further, the 240-month sentence imposed by the district
court, which constituted a significant downward variance from the 360-months-to-life
advisory Guidelines range, was not unreasonably long in light of the 18 U.S.C.
§ 3553(a) factors. See United States v. Booker, 543 U.S. 220, 261-64 (2005)
(standard of review).
Turning to Daniels’s pro se arguments, ineffective-assistance claims are more
properly raised in a 28 U.S.C. § 2255 proceeding, where the record can be developed.
See United States v. Hughes, 330 F.3d 1068, 1069 (8th Cir. 2003). In addition, we
find no abuse of discretion in the district court’s denial of Daniels’s motion for grand
jury transcripts, given his failure to make any showing in support of his request for
them. See Fed. R. Crim. P. 6(e)(3)(E); United States v. Warren, 16 F.3d 247, 253 (8th
Cir. 1994) (bare allegation that grand jury records are necessary did not satisfy
“particularized need” requirement); United States v. Broyles, 37 F.3d 1314, 1318 (8th
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Cir. 1994) (standard of review). Likewise, we find no abuse of discretion, much less
plain error, in the admission of the coconspirators’ testimony, which was not objected
to and was not hearsay. See Fed. R. Evid. 801(d)(2)(D) (out-of-court statement is not
hearsay if it is offered against defendant and is statement of defendant’s coconspirator
in furtherance of conspiracy); Fed. R. Crim. P. 52(b) (unobjected-to error); United
States v. McKay, 431 F.3d 1085, 1093-94 (8th Cir. 2005) (finding no abuse of
discretion in admission of coconspirator’s statements), cert. denied, 126 S. Ct. 2345(2006). Daniels’s remaining contentions about improper remarks by the district court
and the prosecutor are meritless.
Having reviewed the record independently under Penson v. Ohio, 488 U.S. 75,
80 (1988), we have found no other nonfrivolous issues. Accordingly, we affirm the
judgment of the district court. We grant Daniels’s motion to add to his supplemental
brief, and we deny his other pending motion.
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