IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-50738
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EARNEST JAYMY DERRICK;
JAMES ARNES STUBBLEFIELD,
Defendants-Appellees.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. MO-96-CR-87-1
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June 30, 1998
Before DUHE’, DeMOSS and DENNIS, Circuit Judges.
PER CURIAM:*
Earnest Jaymy Derrick appeals his jury convictions for
conspiracy to possess with intent to distribute crack cocaine,
two counts of distribution of crack cocaine, and possession with
intent to distribute crack cocaine. Derrick argues that the
evidence was insufficient to prove beyond a reasonable doubt that
the substance was in fact crack cocaine as charged in count four
of the indictment and that the substance weighed at least five
*
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that this opinion should not be published and is not precedent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. 97-50738
-2-
grams. Derrick also argues that the district court erred in
refusing to consider his collateral attack on a prior drug
offense conviction which had been used to enhance his sentence
pursuant to 21 U.S.C. § 841(b)(1)(B).
Coappellant James Arnes Stubblefield appeals his jury
convictions for conspiracy to possess with intent to distribute
crack cocaine and distribution of crack cocaine. He argues that
the district court erred in denying his motion to suppress the
undercover officer’s in-court identification.
Our review of the record and the arguments and authorities
convinces us that no reversible error was committed. The
evidence regarding the identity of the substance was not
insufficient. United States v. Benbrook, 40 F.3d 88, 94 (5th
Cir. 1994). The district court did not err in finding that the
substance weighed at least five grams given the information
contained in the presentence report and the evidence presented at
trial. United States v. Puig-Infante, 19 F.3d 929, 943 (5th Cir.
1994). The district court did not err in refusing to consider
Derrick’s collateral attack on a conviction that occurred more
than five years before the date of the information. 21 U.S.C.
§ 851(e); United States v. Gonzales, 79 F.3d 413, 426-27 (5th
Cir.), cert. denied, 117 S. Ct. 183 (1996). Finally, the
district court did not err in denying Stubblefield’s suppression
motion. Even if the patrol officer’s stop violated
Stubblefield’s Fourth Amendment rights, the undercover officer’s
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in-court identification rested upon his observation of
Stubblefield at the time of the crime, which predated any
subsequent constitutional violation. United States v. Crews, 445
U.S. 463, 472-73 (1980).
After briefing was completed, Derrick filed a motion
requesting that his appeal be withdrawn without prejudice and
that substitute counsel be appointed. Derrick’s dissatisfaction
with his attorney’s assessment of the merits of his appeal,
without more, is insufficient to warrant the substitution of
counsel. Fifth Circuit Plan under the Criminal Justice Act,
§§ 2, 3; see United States v. Trevino, 992 F.2d 64, 65 (5th Cir.
1993). Accordingly, the motion is DENIED.
AFFIRMED. MOTION DENIED.