UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4804
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOELL A. LEWIS,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. William L. Osteen,
District Judge. (CR-03-151)
Submitted: May 17, 2006 Decided: June 6, 2006
Before NIEMEYER, WILLIAMS, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mark P. Foster, Jr., NIXON, PARK, GRONQUIST & FOSTER, P.L.L.C.,
Charlotte, North Carolina, for Appellant. Gretchen C. F. Shappert,
United States Attorney, Kenneth M. Smith, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Joell A. Lewis challenges his conviction for conspiracy to
distribute five kilograms or more of cocaine powder and the
corresponding imposition of the statutory minimum sentence of ten
years. On appeal, Lewis contends that there was insufficient
evidence to support the jury’s verdict that he conspired with
others to distribute five grams or more of cocaine and that the
Government engaged in sentence manipulation by increasing the
quantity of cocaine it sought to sell from two or three kilograms
to six kilograms, thereby invoking the mandatory minimum sentence
of ten years. We have jurisdiction to review Lewis’s conviction
and sentence pursuant to 28 U.S.C.A. § 1291 (West 1993) and 18
U.S.C.A. § 3742 (West 2000 & Supp. 2006). For the reasons set
forth below, we affirm his conviction and sentence.
We will sustain the jury’s verdict if it is supported by
substantial evidence. See United States v. Cardwell, 433 F.3d 378,
390 (4th Cir. 2005). We evaluate the sufficiency of the evidence
by viewing the evidence in the light most favorable to the
government. See United States v. Mitchell, 209 F.3d 319, 324 (4th
Cir. 2000) (citing Glasser v. United States, 315 U.S. 60, 80
(1942)). The indictment included the drug quantity, and the jury
verdict specifically referenced the drug quantity of five kilograms
or more of cocaine. In addition, the evidence presented at trial
showed the following: (1) An undercover police officer spoke with
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Lewis’s coconspirator, Luis Reina, to arrange a cocaine sale; (2)
Reina and the undercover officer met in Charlotte and the
undercover officer disclosed to Reina that he had six kilograms of
cocaine to sell; (3) Reina and the undercover officer agreed to
complete the drug sale the next day; (4) The following day, Reina
and Lewis arrived at the agreed upon location to consummate the
drug buy; (5) To facilitate the exchange, Lewis called a third
coconspirator and requested that he bring the cash to the location;
(6) After the vehicle carrying the cash arrived at the scene, the
undercover officer gave the key to his car, which contained the six
kilograms of cocaine, to Lewis and Reina; (7) The undercover
officer then entered the coconspirators’ vehicle which contained
the cash; and (8) Lewis entered the undercover officer’s vehicle to
obtain the six kilograms of cocaine. In light of the above
evidence, we conclude that substantial evidence supported the
jury’s verdict that Lewis conspired to distribute five kilograms or
more of cocaine. See United States v. Banks, 10 F.3d 1044, 1054
(4th Cir. 1993) (“It is . . . elementary that one may be a member
of a conspiracy without knowing its full scope, or all its members,
and without taking part in the full range of its activities or over
the whole period of its existence.”).
We turn next to Lewis’s argument that the Government engaged
in sentence manipulation when its undercover officer agreed to sell
six kilograms of cocaine to Lewis’s coconspirators. Lewis contends
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that the conspirators initially agreed to purchase only two to
three kilograms of cocaine, but decided to purchase six kilograms
due to the favorable price offered by the undercover officer. This
court has never adopted the sentencing manipulation theory and has
looked with skepticism on claims of sentence manipulation. See
United States v. Jones, 18 F.3d 1145, 1155 (4th Cir. 1994) (“We .
. . note our skepticism as to whether the government could ever
engage in conduct not outrageous enough so as to violate due
process to an extent warranting dismissal of the government’s
prosecution, yet outrageous enough to offend due process to an
extent warranting a downward departure with respect to a
defendant’s sentencing.”); see also United States v. Connell, 960
F.2d 191, 196 (1st Cir. 1992) (“By their nature, sting operations
are designed to tempt the criminally inclined, and a well-
constructed sting is often sculpted to test the limits of the
target’s criminal inclinations. Courts should go very slowly
before staking out rules that will deter government agents from the
proper performance of their investigative duties.”). Accordingly,
we decline to adopt Lewis’s sentencing manipulation theory and we
find no error in his sentence.
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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