United States v. Posey

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 07-4359

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JERALD VINCENT POSEY,

Defendant - Appellant.

No. 07-4360

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DONNELL O’NEIL SHANKLIN, a/k/a Pig,

Defendant - Appellant.

No. 07-4361

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
 v.

ROGER JEROME BAYLOR, a/k/a Rabbit,

Defendant - Appellant.

No. 07-4362

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

TRAVIS LUCAS,

Defendant - Appellant.

No. 07-4363

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DAVID RAY ROY, a/k/a Pooh,

Defendant - Appellant.

Appeals from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Judge. (3:06-cr-00340-8; 3:06-cr-00340-10; 3:06-cr-00340-1;
3:06-cr-00340-4; 3:06-cr-00340-9)

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Submitted: February 22, 2008 Decided: September 29, 2008

Before NIEMEYER, KING, and SHEDD, Circuit Judges.

Affirmed in part; vacated and remanded in part by unpublished per
curiam opinion.

Taylor B. Stone, BREMNER, JANUS, COOK & STONE, Richmond, Virginia;
Mark Diamond, Richmond, Virginia; William E. Riley, IV, BOONE,
BEALE, COSBY & LONG, Richmond, Virginia; Diane M. Abato, JOHNSON &
JONES, LLP, Richmond, Virginia; Brent A. Jackson, JACKSON LAW
GROUP, Richmond, Virginia, for Appellants. Chuck Rosenberg, United
States Attorney, S. David Schiller, Assistant United States
Attorney, Richmond, Virginia, for Appellees.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:

Jerald Vincent Posey, Donnell O’Neil Shanklin, Roger

Jerome Baylor, Travis Lucas, and David Ray Roy were convicted after

a jury trial of conspiracy to distribute crack cocaine due to their

involvement in gang called Pound Property. Certain Defendants were

also convicted of related substantive crimes. On appeal, each

Defendant challenges his convictions and sentence on various

grounds. We affirm in part and vacate and remand in part.

I. POSEY

Posey first contends that the district court erred during

its instruction to the jury regarding drug quantity. Specifically,

the judge instructed the jury as follows:

The evidence received in this case need not
prove the actual amount of the controlled
substance that was part of the alleged
transaction. The government must prove beyond
a reasonable doubt, however, that a measurable
amount of controlled substance was the subject
of the alleged transaction or conspiracy
. . . . While the government must prove the
quantity involved beyond a reasonable doubt,
it need not prove that the defendant was aware
of or could foresee the quantity as long as
the defendant knowingly and intentionally
conspired to possess with the intent to
distribute or to distribute the amount of
cocaine base, commonly known as crack, as
charged in count one. He is then responsible
for the entire quantity involved, regardless
of whether he knew or could foresee the
quantity.

Posey asserts that this instruction is contradictory and violative

of our decision in United States v. Collins, 415 F.3d 304 (4th Cir.

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2005). In Collins, we held that individual members of a conspiracy

should not be automatically attributed with the quantity of drugs

distributed by the entire conspiracy but that the jury must

determine the specific amount of drugs reasonably foreseeable to

each individual defendant for the purpose of setting a threshold

drug quantity under 21 U.S.C.A. § 841(b) (West 1999 & Supp. 2007).

Collins, 415 F.3d at 314.

Notwithstanding his argument on appeal, Posey did not

object to the instruction below. Thus, we review for plain error.

United States v. Olano, 507 U.S. 725, 732 (1993). To demonstrate

plain error, a defendant must establish that error occurred, that

it was plain, and that it affected his substantial rights. Id. If

a defendant establishes these requirements, the court’s discretion

is appropriately exercised when failure to do so would result in a

miscarriage of justice, such as when the defendant is actually

innocent or the error seriously affects the fairness, integrity or

public reputation of judicial proceedings. Id. at 736.

We believe that Posey has not demonstrated plain error

because he cannot show that the jury instruction given, even if it

were erroneous under Collins, affected his substantial rights. To

affect a defendant’s substantial rights, an error “must have

affected the outcome of the district court proceedings.” Olano,

507 U.S. at 734. Here, the jury’s verdict found the conspiracy

accountable for at least 50 grams of crack cocaine. Attributing

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this amount to Posey, his statutory sentencing range was ten years

to life imprisonment. 21 U.S.C.A. § 841(b)(1)(A). While a finding

of a lesser quantity could have resulted in a lower statutory

sentencing range, see 21 U.S.C.A. § 841(b)(1)(B) (providing for

sentence of five years to 40 years for an offense involving five

grams or more of crack cocaine); 21 U.S.C.A. § 841(b)(1)(C)

(providing for sentence of not more than 20 years for a detectable

amount of crack cocaine), Posey must demonstrate that the jury

would not have found, beyond a reasonable doubt, that he conspired

to traffic in at least 50 grams of crack cocaine, see United States

v. Strickland, 245 F.3d 368, 379-80 (4th Cir. 2001) (holding that,

where uncontroverted evidence showed that the verdict would have

been the same had the jury been properly instructed, the erroneous

instruction was not plain error); United States v. Mojica-Baez, 229

F.3d 292, 307 (1st Cir. 2000) (considering, in determining whether

substantial rights were affected, “what prospects there were that

submission of the question to the jury would have resulted in a

different outcome, keeping in mind the higher standard of proof

required before a jury”).

Here, there was clearly sufficient evidence to convict

Posey of conspiring to distribute crack cocaine. To convict Posey,

the Government had to prove (1) an agreement to distribute cocaine

base between two or more persons, (2) the defendant knew of the

conspiracy, and (3) the defendant knowingly and voluntarily became

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part of the conspiracy. United States v. Burgos, 94 F.3d 849, 857

(4th Cir. 1996). We “can reverse a conviction on insufficiency

grounds only when the prosecution’s failure is clear.” United

States v. Moye, 454 F.3d 390, 394 (4th Cir.), cert. denied, 127 S.

Ct. 452 (2006). In evaluating the sufficiency of the evidence, we

do not review the credibility of the witnesses and assume that the

jury resolved all contradictions in the testimony in favor of the

Government. United States v. Wilson, 118 F.3d 228, 234 (4th Cir.

1997). Where the evidence supports differing reasonable

interpretations, the jury decides which interpretation to credit.

Id.

The evidence at trial showed that Posey was a Pound

Property runner who was addicted to and smoked crack, was supplied

by the gang leaders, and participated in ongoing sales to support

his habit. While there was no testimony, aside from a sale for .54

grams crack cocaine, regarding specific drug amounts that Posey

dealt, Posey was involved in the conspiracy for an extended period

of time, and even assuming that he only conducted similar deals ten

times over the course of the years of the conspiracy, he would

easily meet the five gram minimum for § 841(b)(1)(B), which carries

a statutory maximum of forty years and, thus, a base offense level

of 37 given Posey’s career offender status (which is what Posey

received). These assumptions cover only the crack cocaine

specifically handled by Posey and do not even include the other

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amounts that would have been reasonably foreseeable to him after he

spent substantial periods of time with the gang.

Accordingly, we conclude that the evidence was sufficient

to support Posey’s conviction for conspiracy to distribute crack

cocaine. Moreover, the evidence was overwhelming that ten grams

(and likely even fifty grams) of crack cocaine distributed by the

conspiracy was reasonably foreseeable to Posey. Thus, even had the

allegedly erroneous instruction been correctly given, Posey would

have faced an identical statutory maximum and Guidelines range. As

such, any error did not affect his substantial rights. Therefore,

we affirm Posey’s conviction.

Next, Posey asserts that the district court erred in

sentencing him as a career offender because one of his predicate

convictions -- a New York conviction for criminal possession of a

controlled substance, third degree -- might have been a simple

possession conviction, which does not satisfy the requirements of

USSG § 4B1.1. See Salinas v. United States, 547 U.S. 188 (2006)

(holding that possession without manufacture, purchase, or sale of

a controlled substance is not a controlled substance offense within

the meaning of the career offender sentencing guidelines). Posey

objected below, and the district court overruled the objection on

the basis of the presentence report, which found that, under

subsection (1) of N.Y. Penal Law § 220.16 (McKinney 1999), a person

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is guilty of possession in the third degree when they unlawfully

possess “a narcotic drug with intent to sell it.”

On appeal, Posey asserts that the probation officer

failed to note that he could have been convicted under subsection

(8), which states that a person is guilty of possession in the

third degree when they unlawfully possess “a stimulant and said

stimulant weighs five grams or more,” a crime which is possessory

only. However, under the New York penal code, “stimulant” is

defined in schedules I(f) and II(d). N.Y. Penal Law § 220.00(11)

(McKinney 2006). Schedules I(f) and II(d) list many drugs such as

methamphetamine and fenethylline, but do not include cocaine.

Cocaine is listed under other subsections. See N.Y. Public Health

Law § 3306 (McKinney 2006). Thus, since Posey’s crime involved

cocaine, he was not convicted under subsection (8).

When reviewing a sentence, we review “legal questions,

including the interpretation of the guidelines, de novo, while

factual findings are reviewed for clear error.” United States v.

Moreland, 437 F.3d 424, 433 (4th Cir.), cert. denied, 126 S. Ct.

2054 (2006). Here, the district court properly found that Posey

was a career offender. Posey did not (and does not on appeal)

dispute that his New York conviction involved four ounces of

cocaine. As such, the only applicable subsection of the relevant

statute required a finding or admission that Posey possessed the

cocaine with intent to distribute it. Thus, the prior conviction

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was properly considered in determining that Posey was a career

offender, see USSG § 4B1.2(b) (defining controlled substance

offense to include possession with intent to distribute), and the

district court’s finding that Posey was a career offender was not

clear error.

Finally, Posey asserts that the district court viewed and

applied the Guidelines as mandatory, even while giving lip service

to the fact that the Guidelines are advisory. Specifically, the

court stated the following at sentencing:

Mr. Posey there’s one thing I want to make
sure that you understand. Unlike what you’re
accustomed to in Fairfax, you realize that in
Federal Court I have limited discretion in
these cases. The U.S. Congress sets the
guidelines, and I’m pretty well required to
follow them. It’s unlike a state court judge
that has unlimited discretion; you understand
that, don’t you? . . .

So you are presented in one of the most
unfavorable positions that a person can be in,
unfortunately, Mr. Posey, and you were held
responsible for all the drugs that Mr. Lucas
and others sold. And that’s the way the law
works, unfortunately. And I realize the
guidelines are high in this case, and if I
were the one that was crafting the guidelines,
they may be lower in your case, but my sworn
duty is to follow them.

And unfortunately based on what I’ve heard
here, although I was impressed by your
brother’s testimony and your wife’s, there is
simply not enough for me to give you a
downward variance. I think the guidelines in
this case are appropriate based upon the law
in the case, the evidence, and your prior
record.

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 So, Mr. Posey, having considered the U.S.
sentencing guidelines as advisory only, and
considering all the facts and circumstances in
[18 U.S.C.A. § 3553 (West 2000 & Supp. 2007)],
specifically adequate deterrence, protection
of the community, and respect for the law,
this Court believes that commitment to the
U.S. Bureau of Prisons for a term of 360
months is adequate but not longer than
necessary.

A sentencing court should first calculate the applicable

Guidelines range. Gall v. United States, 128 S. Ct. 586, 596-97

(2007). Then, the sentencing court should consider the resulting

advisory Guidelines range in conjunction with the factors set out

in 18 U.S.C.A. § 3553(a), and determine whether the § 3553(a)

factors support the sentence requested by either party. Id. The

sentencing court may not presume that the Guidelines range is

reasonable, and if it decides to impose a sentence outside the

Guidelines range it “must consider the extent of the deviation and

ensure that the justification is sufficiently compelling to support

the degree of the variance.” Id. at 596-97.

The appellate court reviews a sentence for

reasonableness, focusing on whether the district court abused its

discretion, regardless of whether the sentence imposed is inside or

outside the Guidelines range. Gall, 128 S. Ct. at 597; United

States v. Pauley, 511 F.3d 468, 2007 WL 4555520 (4th Cir. Dec. 28,

2007). This involves two steps: first, examining the sentence for

significant procedural errors, and second, evaluating the substance

of the sentence. Pauley, 2007 WL 4555520 at *5. “Substantive

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reasonableness review entails taking into account the totality of

the circumstances, including the extent of any variance from the

Guidelines range.” Id. (internal quotations omitted). While the

appellate court may presume a sentence within the Guidelines range

to be reasonable, it may not presume a sentence outside the range

to be unreasonable. Id.

While Gall did not specifically overrule any case from

this Circuit, the legal landscape is nonetheless altered. In Gall,

the Supreme Court ruled that certain circuit courts had effectively

created “an impermissible presumption of unreasonableness for

sentences outside the Guidelines range” and improperly applied “a

heightened standard of review to sentences outside the Guidelines

range.” Gall, 128 S. Ct. 595. Additionally, in another recent

case, the Supreme Court held that a district court may impose a

variance sentence on the basis that, in a given case, the

Guidelines range fails to properly reflect the § 3553 factors.

Kimbrough v. United States, 128 S. Ct. 558, 575 (2007).

We find that the district court, in this case, may have

been operating under the belief that it was required to give the

Guidelines range more weight than other factors, and in fact more

weight than it would have liked to give them. The court stated

that it was the court’s “sworn duty” to follow the Guidelines and

noted that, if the court had greater discretion, it would have

crafted a lower sentence. While the court also stated that it

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considered the Guidelines as advisory only, weighed the appropriate

§ 3553 factors, and determined that a sentence within the

Guidelines’ range was appropriate, it made this decision without

having the benefit of Gall and Kimbrough. Accordingly, we vacate

Posey’s sentence and remand for resentencing. We express no

opinion as to an appropriate or reasonable sentence.

II. REMAINING DEFENDANTS: SUFFICIENCY OF THE EVIDENCE

Each of the other Defendants also argues that the

evidence was insufficient to support his conviction. Keeping in

mind the standards stated above, we will address each Defendant in

turn.

Shanklin. The evidence established that Shanklin was a

member of the Pound Property drug selling gang. He was supplied by

Lucas, and he provided crack cocaine to lower rung members who made

sales on the street. Shanklin essentially challenges the

credibility of the witnesses against him and contends that some of

the evidence was contradictory. However, these issues are the

jury’s province. Accordingly, the evidence was sufficient to

support Shanklin’s conviction for conspiracy to distribute crack

cocaine.

Baylor. Baylor asserts that the evidence showed only

that he sold drugs independent of the conspiracy. To the contrary,

however, the evidence showed that Baylor sold consistently at the

Pound Property locations and fronted cocaine to other members of

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the gang. One witness, who was involved in selling drugs for Pound

Property, testified that he witnessed Baylor selling crack cocaine

ten to twenty times “around by the pound” and that he had

personally bought cocaine from Baylor and been fronted cocaine by

Baylor. Another witness testified that she acted as a runner at

the Pound locations and that she specifically worked as a runner

for Baylor. The evidence against Baylor was sufficient to support

his conviction for conspiracy to distribute crack cocaine.

Lucas. Lucas challenges the sufficiency of the evidence

supporting his conspiracy conviction, arguing that (1) the

witnesses contradicted each other and (2) the witnesses were

“selling their testimony for favorable treatment.” As discussed

above, we do not review the credibility of witnesses, and in the

case of conflicting evidence, the jury is the arbiter.

Moreover, the evidence against Lucas was overwhelming.

Witnesses testified that Lucas was the gang’s leader, that Lucas

and Antonio Shanklin were partners in the sale of crack cocaine,

that they had firearms on the premises, and that they used runners

to sell large amounts of cocaine. One witness testified about

joining with Antonio Shanklin and Lucas and purchasing two

kilograms of powder cocaine, cooking it into crack, and selling it.

Thus, Lucas’s challenge to the evidence at trial is without merit.

Roy. First, Roy challenges his convictions for

distribution of crack cocaine. Crystal Powers testified that she

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worked with the Government in two controlled buys from Roy. In

addition, there were audiotapes of the buys, and Powers confirmed

that the transcripts were correct. While Roy challenges Powers’

credibility, this court does not review the jury’s credibility

findings.

Second, Roy asserts that the evidence was insufficient to

support his conspiracy conviction. Multiple witnesses testified

that Roy was a member of Pound Property, and in fact, he was

wearing the gang colors during trial. He purchased crack cocaine

from Lucas and sold it for Pound Property. Again Roy challenges

the contradictions in the testimony and the reliability of the

witnesses. The jury resolved the contradictions and chose to

credit these witnesses, decisions which are not reviewable on

appeal. Accordingly, there was sufficient evidence supporting

Roy’s convictions.

III. SHANKLIN: CRACK TO POWDER RATIO.

Shanklin asserts that the district court should have

granted his motion for a variance sentence on the basis of the

harshness of the Guidelines’ crack cocaine/powder cocaine

sentencing disparity. In denying the motion, the district court

did not specifically discuss the issue; however, the court was

operating under the then-controlling Circuit precedent of United

States v. Eura, 440 F.3d 625 (4th Cir. 2006), vacated, 2008 WL

59208 (U.S. Jan. 7, 2008) (No. 05-11659). In Eura, we held that a

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district court may not vary from the Guidelines sentencing range

solely because of its disagreement with the crack/powder sentencing

ratio. Id. at 634.

However, the Supreme Court recently decided Kimbrough,

which held that “it would not be an abuse of discretion for a

district court to conclude when sentencing a particular defendant

that the crack/powder disparity yields a sentence ‘greater than

necessary’ to achieve § 3553(a)’s purposes, even in a mine-run

case.” 128 S. Ct. at 575 (noting that the Sentencing Commission

itself has reported that the disparity results in

disproportionately harsh sentences). Because Shanklin moved for a

variance on this ground, we vacate Shanklin’s sentence and remand

for the district court to resentence him in light of Kimbrough. We

express no opinion on an appropriate or reasonable sentence.

IV. BAYLOR: REASONABLE SENTENCE.

Baylor first challenges the district court’s refusal to

depart downward where Baylor alleged that his criminal history

category seriously overrepresented his criminal history. According

to Baylor, he should have been in Category III rather than Category

V. However, the district court’s decision not to grant a downward

departure is not reviewable unless the court’s refusal is based on

the mistaken belief that the court lacked the authority to depart.

See United States v. Bayerle, 898 F.2d 28, 31 (4th Cir. 1990).

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Because Baylor does not allege that the district court

misunderstood its authority, this claim is without merit.

Next, Baylor asserts that his sentence was unreasonably

harsh, considering that there was no evidence that Baylor was

violent or involved with more than street level dealing. We will

affirm a sentence if it “is within the statutorily prescribed range

and is reasonable.” United States v. Moreland, 437 F.3d 424, 432

(4th Cir.), cert. denied, 126 S. Ct. 2054 (2006). A sentence that

falls within the properly calculated advisory guideline range is

entitled to a presumption of reasonableness. United States v.

Johnson, 445 F.3d 339, 341 (4th Cir. 2006). Because Baylor was

sentenced at the low end of his 360 months to life advisory

guidelines range, his sentence is presumptively reasonable.

Baylor does not challenge the procedural reasonableness

of his sentence. The thrust of his argument is that a sentence of

240 months would serve all the same policies as his current

sentence. The district court noted, however, that prior prison

terms had not deterred Baylor from continued criminal activity,

that Baylor was supplying other dealers, and that Baylor committed

the current crime while on probation for another drug trafficking

conviction. Given the district court’s careful consideration, the

district court did not abuse its discretion in imposing sentence.

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 V. LUCAS: CONTINUANCE.

The day before trial, Lucas signed plea agreement and a

statement of facts. However, on the morning of trial, Lucas

changed his mind. Counsel made a motion for a continuance, arguing

that she had not been preparing for the last couple of days,

believing that the case would be resolved with a plea, and that she

needed extra time to prepare for the consequences of the signed

statement of facts. The district court denied the motion, noting

that counsel had been preparing for over two months prior to the

aborted plea. On appeal, Lucas asserts that the district court’s

refusal to grant a continuance violated his right to effective

assistance of counsel.

A district court’s denial of a motion for a continuance

is reviewed for abuse of discretion. United States v. Williams,

445 F.3d 724, 738 (4th Cir.), cert. denied, 127 S. Ct. 314 (2006).

An abuse of discretion in this context is “‘an unreasoning and

arbitrary insistence upon expeditiousness in the face of a

justifiable reason for delay’” and violates a defendant’s Sixth

Amendment right to counsel. Id. at 739 (quoting Morris v. Slappy,

461 U.S. 1, 11-12 (1983)). In order to prove an infringement of

the right to effective assistance of counsel, however, “the

defendant must show that the error specifically prejudiced [his]

case in order to prevail.” Id. (internal quotation marks and

citation omitted).

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 A party’s substantial delay is also relevant to this

court’s review of the denial of a motion for continuance. See

United States v. Badwan, 624 F.2d 1228, 1231 (4th Cir. 1980) (no

abuse of discretion where counsel did not move for a continuance

until eight days after trial date was announced). “The later that

a motion for a continuance is made, the more likely it is made for

dilatory tactics; hence, it is less likely that the district court

arbitrarily denied the continuance.” United States v. LaRouche,

896 F.2d 815, 824 (4th Cir. 1990).

The district court did not abuse its discretion in

denying Lucas’s request for a continuance made on the morning of

trial. The timing of Lucas’s aborted plea and the fact that he

signed a statement of facts were strictly within his power. In

addition, Lucas had over two months to prepare for trial, and

continuing a consolidated criminal trial would be burdensome.

Lastly, Lucas has failed to show any prejudice; as discussed above,

the evidence against him was overwhelming. See id. at 825 (“More

than a general allegation of ‘we were not prepared’ is necessary to

demonstrate prejudice.”). Under these circumstances, the district

court did not abuse its discretion in denying the request.

VI. LUCAS: LEADERSHIP ADJUSTMENT

Lucas asserts that he should not have received a

four-point manager/supervisor adjustment. In district court, he

did not deny that he was a leader in the conspiracy, but he

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complained about the extent of the adjustment. On appeal, he

attempts to portray himself as a child who could not have occupied

such a position of leadership.

A district court’s determination of the defendant’s role

in the offense is reviewed for clear error. United States v.

Sayles, 296 F.3d 219, 224 (4th Cir. 2002). “A finding is ‘clearly

erroneous’ when although there is evidence to support it, the

reviewing court on the entire record is left with the definite and

firm conviction that a mistake has been committed.” United

States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948). A four-level

adjustment for role in the offense is appropriate when “the

defendant was an organizer or leader of a criminal activity that

involved five or more participants or was otherwise extensive.”

USSG § 3B1.1(a).

The district court correctly noted that several witnesses

identified Lucas as a key member of Pound Property. He sold

cocaine to various dealers who then used runners to sell it to the

consumers. Lucas dealt with large quantities of cocaine, and he

was a major supplier for the entire Pound Property distribution

network. Given the testimony at trial, these findings were not

clearly erroneous. Accordingly, the leadership adjustment was

appropriate.

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 VII. LUCAS: REASONABLE SENTENCE

Lucas contends that his life sentence is unreasonably

long. However, Lucas’s sentence, which was within his Guidelines

range, is presumptively reasonable.* Lucas provides no compelling

argument to overcome this presumption. Lucas possessed a firearm

throughout the course of the conspiracy which involved several

kilograms of crack cocaine. He was a leader in the conspiracy, and

he had a long rap sheet, including convictions for second degree

murder, assault, and possession of cocaine. Lucas’s contentions

that he was only twenty-one years old and had a lack of parenting

do not compel a shorter sentence, and the district court did not

abuse its discretion in declining to impose a variance sentence on

these grounds. We find that Lucas’s sentence was reasonable.

VIII. ROY: PROSECUTORIAL MISCONDUCT

Finally, Roy argues that the Assistant United States

Attorney entered the jury room during deliberations. The district

court investigated the allegations, and the jury foreman, the

security officers, and the prosecutor all confirmed that the

alleged entry into the jury room simply did not occur. Roy does

not contend that the district court applied the wrong legal

standard or otherwise erred. Accordingly, we affirm the ruling of

the district court.

* * *

*
Lucas’s Guidelines range was Life.

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 Based on the foregoing, we affirm each Defendant’s

convictions. We also affirm the sentences of Lucas, Baylor, and

Roy. We vacate Posey’s and Shanklin’s sentences and remand for

further proceedings consistent with this opinion. We deny Posey’s

pending pro se motions. We dispense with oral argument, because

the facts and legal contentions are adequately presented in the

materials before us and argument would not aid the decisional

process.

AFFIRMED IN PART;
VACATED AND REMANDED IN PART

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