United States v. Butler

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 03-4290
WILBUR BUTLER,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Wilmington.
James C. Fox, Senior District Judge.
(CR-02-93-FO)
Submitted: November 26, 2003
Decided: January 23, 2004
Before LUTTIG and GREGORY, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
Vaughan S. Winborne, Jr., LAW OFFICES OF VAUGHAN S. WIN-
BORNE, JR., Raleigh, North Carolina, for Appellant. Frank D. Whit-
ney, United States Attorney, Anne M. Hayes, Christine Witcover
Dean, Assistant United States Attorneys, Raleigh, North Carolina, for
Appellee.
2 UNITED STATES v. BUTLER
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Wilbur Butler appeals his convictions and 212-month sentence for
conspiracy to distribute more than 500 grams but less than five kilo-
grams or more of cocaine, fifty grams or more of cocaine base, and
an unspecified amount of oxycodone (OxyContin), in violation of 21
U.S.C. §§ 841, 846 (2000); distribution of fourteen grams of cocaine
base, in violation of 21 U.S.C. § 841 (2000); and distribution of
twenty-eight grams of cocaine base, in violation of 21 U.S.C. § 841(2000). Finding no error, we affirm.
Butler first contends that the district court erred in admitting evi-
dence concerning a piece of crack cocaine found in the car of a police
informant immediately after a controlled buy. Butler argues that the
evidence was irrelevant. "‘Relevant evidence’ means evidence having
any tendency to make the existence of any fact that is of consequence
to the determination of the action more probable or less probable than
it would be without the evidence." Fed. R. Evid. 401. The evidence,
while not determinative, made it more probable that Butler sold crack
cocaine to the informant, and we therefore conclude that the district
court did not err in admitting the evidence.
Next, Butler disputes the district court’s calculation of drug quan-
tity at sentencing. The district court’s factual findings will be upheld
absent clear error. See 18 U.S.C. § 3742(e) (2000); United States v.
Lamarr, 75 F.3d 964, 972 (4th Cir. 1996). The district court’s finding
was based on the trial testimony. Butler argues that this testimony was
unreliable, but that credibility determination was for the jury to make.
Butler has not made "an affirmative showing the information is inac-
curate." United States v. Terry, 916 F.2d 157, 162 (4th Cir. 1990). We
conclude that the district court did not clearly err.
Finally, Butler asserts that the district court erred in denying his
motion for a new trial based on the Government’s violation of the
UNITED STATES v. BUTLER 3
Jencks Act, 18 U.S.C. § 3500b (2000). Violations of the Jencks Act
constitute harmless error where no prejudice results to the defense.
United States v. Schell, 775 F.2d 559, 567 (4th Cir. 1985). We find
that the Jencks material was duplicative of other information provided
to the defense, and that Butler is unable to show prejudice. Id.; see
also United States v. Snow, 537 F.2d 1166, 1168 (4th Cir. 1976).
Accordingly, the district court did not err in denying the motion for
a new trial.
We therefore affirm Butler’s convictions and sentence. We deny
Butler’s motion for leave to file a pro se supplemental brief. 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 the decisional process.
AFFIRMED