United States v. Smith

ON PETITION FOR REHEARING
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 99-4899
LATASHA MARIE SMITH,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Charlottesville.
James H. Michael, Jr., Senior District Judge.
(CR-98-37)
Submitted: July 24, 2001
Decided: August 15, 2001
Before MURNAGHAN,* NIEMEYER, and MICHAEL,
Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Charles Y. Sipe, GOODMAN, WEST & FILETTI, P.L.L.C., Char-
lottesville, Virginia, for Appellant. Robert P. Crouch, Jr., United
*Judge Murnaghan was assigned to the panel in this case but died prior
to the time the original decision was filed. This decision is also filed by
a quorum of the panel pursuant to 28 U.S.C. § 46(d).
2 UNITED STATES v. SMITH
States Attorney, Ray B. Fitzgerald, Jr., Assistant United States Attor-
ney, Darcy Goodard, Third Year Practice Student, Charlottesville,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Latasha Marie Smith appeals her convictions and sentence for one
count of conspiracy to distribute cocaine base, 21 U.S.C. § 846(1994), and one count of knowingly and intentionally possessing with
intent to distribute cocaine base, 21 U.S.C. § 841(a)(1) (1994). Find-
ing no reversible error, we affirm.*
Smith challenges the sufficiency of the evidence as to both of her
convictions. In reviewing a sufficiency of the evidence claim on
appeal, we must sustain the verdict if the record contains "substantial
evidence, taking the view most favorable to the Government, to sup-
port it." Glasser v. United States, 315 U.S. 60, 80 (1942). In applying
this standard, we give due regard to the fact finder’s prerogative to
*This opinion was originally issued on September 20, 2000. On Octo-
ber 30, 2000, the court granted Smith’s petition for rehearing, denied the
petition for rehearing en banc, and placed the appeal in abeyance pending
this Court’s decisions in United States v. Promise, ___ F.3d ___, 2001
WL 732389 (4th Cir. June 29, 2001) (en banc), and United States v.
Perez, 2001 WL 37520 (4th Cir. Jan. 16, 2001) (No. 00-4036) (unpub-
lished). Smith argued that her term of imprisonment and period of super-
vised release violated the rule announced in Apprendi v. New Jersey, 530
U.S. 466 (2000). Smith’s term of imprisonment is proper under this
court’s reasoning in United States v. White, 238 F.3d 537 (4th Cir. 2001).
Furthermore, her period of supervised release is authorized by statute.
See 18 U.S.C. § 3583(b) (1994); United States v. Good, 25 F.3d 218, 220
n.3 (4th Cir. 1994).
UNITED STATES v. SMITH 3
resolve questions of credibility. See United States v. Burgos, 94 F.3d
849, 862-63 (4th Cir. 1996). We find that evidence clearly established
that Smith was involved in the narcotics conspiracy and that she con-
structively possessed cocaine in March 1997 at the Charlottesville,
Virginia bus station.
We also find that the district court did not abuse its discretion in
admitting evidence that a co-defendant murdered a person who alleg-
edly stole drugs and money from a member of the conspiracy. See
United States v. Brooks, 111 F.3d 365, 371 (4th Cir. 1997) (evidenti-
ary decisions are reviewed for abuse of discretion). The evidence was
admissible against the co-defendant. See United States v. Miller, 116
F.3d 641, 682 (2d Cir. 1997); United States v. Chin, 83 F.3d 83, 87-
88 (4th Cir. 1996). The probative value of the evidence was not sub-
stantially outweighed by the danger of unfair prejudice. See Fed. R.
Evid. 403. Because the evidence pertained to only one defendant and
the district court gave a limiting instruction, we conclude Smith was
not prejudiced by the evidence.
Because the evidence of the co-defendant’s participation in a mur-
der was admissible and Smith was not prejudiced by such evidence,
the denial of Smith’s motion to sever was not an abuse of discretion.
See United States v. Haney, 914 F.2d 602, 606 (4th Cir. 1990).
We also find the district court did not clearly err in attributing 542
grams of crack cocaine to Smith for sentencing purposes. See 18
U.S.C. § 3742(e) (1994); United States v. Fletcher, 74 F.3d 49, 55
(4th Cir. 1996); United States v. Uwaeme, 975 F.2d 1016, 1018 (4th
Cir. 1992). The preponderance of the evidence supported the district
court’s findings. See United States v. Goff, 907 F.2d 1441, 1444 (4th
Cir. 1990).
Nor did the district court clearly err in adding two points to Smith’s
criminal history point total based on that fact that she was a member
of the conspiracy while she was serving a good behavior sentence for
a misdemeanor offense. See United States v. McManus, 23 F.3d 878,
882 (4th Cir. 1994) (district court’s conclusion regarding criminal his-
tory category is reviewed for clear error). It is presumed Smith contin-
ued to be involved in the conspiracy because she did not make an
4 UNITED STATES v. SMITH
affirmative act withdrawing from the conspiracy. See United States v.
Walker, 796 F.2d 43, 49 (4th Cir. 1986).
We find the district court did not abuse its discretion in denying
Smith’s motion to reconsider the denial of a mental evaluation under
18 U.S.C. § 4244 (1994). Finally, because the district court knew it
had the discretion to depart from the sentencing guidelines due to
diminished capacity, the district court’s decision declining to depart
is not reviewable by this court. See United States v. Jones, 18 F.3d
1145, 1148 (4th Cir. 1994); United States v. Bayerle, 898 F.2d 28, 30-
31 (4th Cir. 1990).
Accordingly, we affirm the convictions and sentence. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED