UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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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