United States v. Brown

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 04-4300

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

KENYATTE BROWN,

Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Columbia. Matthew J. Perry, Jr., Senior
District Judge. (CR-01-1109)

Submitted: August 10, 2005 Decided: September 15, 2005

Before WILLIAMS, MICHAEL, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

John A. O’Leary, O’LEARY ASSOCIATES, P.A., Columbia, South
Carolina, for Appellant. J. Strom Thurmond, Jr., United States
Attorney, William K. Witherspoon, Assistant United States Attorney,
Columbia, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

Kenyatte Brown appeals his jury conviction and 262-month

sentence for possession with intent to distribute less than five

grams of cocaine base under 21 U.S.C. § 841(a)(1). The conviction

was based upon an incident on November 21, 2000, when Officer

Follin of the Sumter Police Department and a confidential informant

purchased cocaine from Brown in an undercover drug buy. We affirm

Brown’s conviction and sentence.

Brown first contends that the district court erred by

failing to suppress the identification of Brown by Officer Follin

and by failing to adequately instruct the jury on the reliability

of suggestive eyewitness identifications. Brown argues that

Officer Follin’s identification should have been suppressed because

it was tainted by Officer Follin’s initial identification of Brown.

Brown argues the initial identification procedure was impermissibly

suggestive because Officer Follin identified Brown by looking for

Brown’s name in a police department photograph book.

We apply a two-step test to determine whether

identification testimony is admissible. “First, the defendant must

establish that the photographic lineup procedure was impermissibly

suggestive. . . . Second, even if the procedure was suggestive, the

in-court identification is valid if it was reliable. . . . The

factors the court may consider in measuring reliability include:

(1) the witness’ opportunity to view the perpetrator at the time of

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the crime; (2) the witness’ degree of attention at the time of the

offense; (3) the accuracy of the witness’ prior description of the

perpetrator; (4) the witness’ level of certainty when identifying

the defendant as the perpetrator at the time of the confrontation;

and (5) the length of time between the crime and the

confrontation.” United States v. Wilkerson, 84 F.3d 692, 694 (4th

Cir. 1996). In essence, the court examines the totality of the

circumstances surrounding the identification. United States v.

Johnson, 114 F.3d 435, 441 (4th Cir. 1997).

Officer Follin did not use an impermissibly suggestive

photographic line-up procedure. Aware of Brown’s name and of

Brown’s appearance, Officer Follin simply turned to the photograph

of Kenyatte Brown in the book and confirmed that it was the same

person who sold the drugs to the confidential informant on

November 21, 2000. Even if this court were to find that Officer

Follin’s identification of Brown was impermissibly suggestive,

Officer Follin’s identification of Brown as the drug dealer is

reliable. First, the purchase occurred in the afternoon on a clear

day and took less than a minute. The drug purchase was videotaped,

and Brown’s face was visible on the tape. Officer Follin viewed

the videotape prior to picking Brown’s picture out of the

photograph book. Officer Follin also testified that during the

drug buy, he observed Brown walk across the front of the vehicle

Officer Follin and the confidential informant were traveling in and

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stop at the passenger side window. Officer Follin’s vision was not

obscured, and Brown was not wearing a mask or other covering over

his face. Second, Officer Follin testified that at the time of the

drug sale, his attention was not focused on anything except Brown.

Third, Officer Follin drafted a report of the purchase solely from

his memory upon the completion of the controlled drug deal. In the

report, Officer Follin described Brown as five foot eight and one

hundred fifty pounds. Police records subsequently described Brown

as five foot nine and one hundred sixty pounds. Fourth, the

confidential informant stated to Officer Follin just prior to the

drug sale “here is Kenyatte.” After Officer Follin and the

confidential informant completed the purchase, Officer Follin again

asked the confidential informant who sold the drugs to them. The

confidential informant responded Kenyatte and Keshawn Brown.

Examining the totality of the circumstances surrounding Officer

Follin’s identification of Brown as the drug dealer, we find

Officer Follin’s identification of Brown sufficiently reliable.

We next consider whether the district court properly

instructed the jury on eyewitness identifications. We review the

district court’s jury instructions for abuse of discretion. United

States v. Ruhe, 191 F.3d 376, 384 (4th Cir. 1999). The district

court instructed the jury that when evaluating eyewitness

testimony, to consider factors such as the general credibility of

the witness; the length of time that the witness observed the

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defendant, including visibility and distance; the manner in which

the defendant was presented to the witness; the witness’s prior

familiarity with the defendant; and the length of time between the

incident and when the witness next identified the defendant. We

reject Brown’s argument because the district court’s jury

instruction adequately informed the jury on evaluating eyewitness

identifications.

Brown also contends that the district court violated his

Sixth Amendment rights by enhancing his sentence based on facts not

found by the jury. See United States v. Booker, 125 S. Ct. 738

(2005). The district court enhanced Brown’s sentence based on

Brown’s prior drug-related convictions. We find no merit in

Brown’s argument because “the Supreme Court continues to hold that

the Sixth Amendment (as well as due process) does not demand that

the mere fact of a prior conviction used as a basis for a

sentencing enhancement be pleaded in an indictment and submitted to

a jury for proof beyond a reasonable doubt.” United States v.

Cheek, 415 F.3d 349, 352 (4th Cir. 2005).

For these reasons, we affirm Brown’s conviction and

sentence. We deny counsel’s motion to be relieved as counsel. 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

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