IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-60103
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL DWAYNE MCGEE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:96-CR-48BS
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May 13, 1998
Before JONES, SMITH, and STEWART, Circuit Judges.
PER CURIAM:*
Michael Dwayne McGee was charged in count 1 of an indictment
with conspiracy to distribute cocaine base. McGee contends that
the district court erred in admitting evidence of his prior drug
dealings with an unindicted coconspirator under Fed. R. Evid.
404(b). The district court did not abuse its discretion in
admitting the evidence to show intent. United States v.
Gonzalez, 76 F.3d 1339, 1347 (5th Cir. 1996).
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 97-60103
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McGee contends that the district court abused its discretion
in concluding that venue was proper. The Government showed by a
preponderance of the evidence that McGee committed overt acts in
furtherance of the conspiracy and that the agreement to
distribute cocaine base was formed in the Southern District of
Mississippi. See United States v. Pomranz, 43 F.3d 156, 158-60
(5th Cir. 1995).
McGee argues that the only evidence showing the existence of
a coconspirator with whom he could be involved in a conspiracy
was the testimony of his codefendant, who was testifying under an
agreement with the Government. The testimony was not incredible
as a matter of law and was sufficient to establish that there was
an agreement between McGee and others to distribute cocaine base.
See United States v. Osum, 943 F.2d 1394, 1404-05 (5th Cir.
1991); United States v. Klein, 560 F.2d 1236, 1242 (5th Cir.
1977).
McGee contends that the district court erred in adopting the
probation officer’s finding that McGee had distributed 6.166
kilograms of cocaine. Because there was no objection to this
finding in the district court, the issue is reviewed for plain
error. United States v. Vital, 68 F.3d 114, 118-19 (5th Cir.
1995). The amount of drugs for which a defendant will be held
accountable is a factual finding, United States v. Bermea, 30
F.3d 1539, 1575 (5th Cir. 1994); and, “[q]uestions of fact
capable of resolution by the district court upon proper objection
No. 97-60103
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at sentencing can never constitute plain error.” Vital, 68 F.3d
at 119.
McGee argues that the facts were insufficient to support an
enhancement under U.S.S.G. § 2D1.1(b)(1). Again, because there
was no objection, this issue is reviewed for plain error. Even
if this issue is reviewable under the plain error standard as a
question of law, no error is evident, plain or otherwise. See
United States v. Dixon, 132 F.3d 192, 202 (5th Cir. 1997).
AFFIRMED.