United States v. Tappin

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 96-4399
IVAN CHARLES TAPPIN, a/k/a Lester,
a/k/a Wayne L. Smith, a/k/a Lester
Smith,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4401
ANTHONY JOHNSON, a/k/a AJ,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4421
LINWOOD BERNARD AUSTIN,
Defendant-Appellant.
Appeals from the United States District Court
for the Middle District of North Carolina, at Greensboro.
Frank W. Bullock, Jr., Chief District Judge.
(CR-95-249)
Submitted: January 21, 1997
Decided: February 24, 1997
Before MURNAGHAN, NIEMEYER, and LUTTIG,
Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Walter T. Johnson, Jr., Greensboro, North Carolina; William L. Ost-
een, Jr., ADAMS & OSTEEN, Greensboro, North Carolina; Henry E.
Frye, Jr., Greensboro, North Carolina; David B. Freedman, WHITE
& CRUMPLER, Winston-Salem, North Carolina, for Appellants.
Walter C. Holton, Jr., United States Attorney, Sandra J. Hairston,
Assistant United States Attorney, Greensboro, North Carolina, for
Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
This is a consolidated appeal of convictions arising from a large-
scale drug conspiracy in North Carolina. Ivan Tappin, Anthony John-
son, and Linwood Austin appeal their convictions and sentences for
conspiracy to possess with intent to distribute crack cocaine.1 Tappin
contends that the trial court erred by denying his F ED. R. CRIM. P. 29
motion for acquittal. Both Johnson and Austin claim that the court
erred by attributing 1.5 kilograms of cocaine base to them, and Austin
also claims that he was improperly denied a reduction in his base
_________________________________________________________________
1 21 U.S.C. § 846 (1994).
2
offense level as a minor participant.2 We find no reversible error and
affirm Tappin's, Johnson's, and Austin's convictions and sentences.
In appeal No. 96-4399, Tappin claims that the evidence presented
at trial was insufficient to convict him of the crime alleged in the
indictment; therefore, the district court erred by failing to grant his
motion for acquittal. According to Tappin, the government did not
meet its burden of proving him guilty beyond a reasonable doubt
because he maintained his innocence throughout the proceedings and
all of the witnesses against him had a vested interest in his conviction.
Tappin's claim is without merit.
We review a denial of a motion for acquittal under a sufficiency
of evidence standard.3 To sustain a conviction the evidence, when
viewed in the light most favorable to the government, must be suffi-
cient for a rational jury to have found the essential elements of the
crime beyond a reasonable doubt.4 All reasonable inferences from the
facts established to those sought to be established may be made.5
In this case, the government presented testimony showing that Tap-
pin was a major participant in the drug conspiracy, and that Tappin
purchased substantial quantities of cocaine on several occasions.
While Tappin argues that the government's evidence consisted exclu-
sively of testimony by co-defendants, which was self-interested and
therefore unreliable, such an argument is unavailing. Tappin had
every opportunity to challenge the criminal histories, biases, and
motivations of the government's witnesses during cross-examination
and argument. The jury found the government's evidence believable
and the jury's decision on the credibility of witnesses is not review-
able by this court.6
_________________________________________________________________
2 United States Sentencing Commission, Guidelines Manual, §
3B1.2(b) (Nov. 1995).
3 United States v. Brooks, 957 F.2d 1138, 1147 (4th Cir. 1992).
4 United States v. Brewer, 1 F.3d 1430, 1437 (4th Cir. 1993); see
Glasser v. United States, 315 U.S. 60, 80 (1942).
5 United States v. Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982).
6 United States v. Johnson, 55 F.3d 976, 979 (4th Cir. 1995).
3
In appeals Nos. 96-4401 and 96-4421, Johnson and Austin contend
that the district court improperly attributed to them 1.5 kilograms of
crack cocaine for sentencing purposes. Testimony at trial established
by a preponderance7 that they had been involved in the importation
and/or sale of at least 1.5 kilograms of crack cocaine. Consequently,
we cannot say that the district court's attribution of 1.5 kilograms of
crack cocaine to Johnson and Austin was clearly erroneous.8
Finally, Austin contends that the district court erred by not granting
him a reduction in his base offense level under U.S.S.G. § 3B1.2(b)
as a minor participant in the conspiracy. While Austin may not have
played as large a role in the conspiracy as his co-defendants, the dis-
trict court found his involvement to be "substantial." We cannot say
that the district court's findings are clearly erroneous because a defen-
dant who has sold drugs in a drug conspiracy does not have a minor
role in the offense.9
Accordingly, we affirm Tappin's, Johnson's, and Austin's convic-
tions and sentences in all respects. We dispense 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
_________________________________________________________________
7 United States v. Powell, 886 F.2d 81, 85 (4th Cir. 1989).
8 Brooks, 957 F.2d at 1148.
9 Brooks, 957 F.2d at 1149.
4