UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 97-40705
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee-Cross-Appellant,
versus
LEONDRUS MCBRIDE, JR.,
Defendant-Appellant-Cross-Appellee,
PAUL MAYWEATHERS,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:96-CR-101-1
July 31, 1998
Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Leondrus McBride, Jr. and Paul Mayweathers appeal their
convictions for conspiracy and possession of cocaine base with
intent to distribute. The Government cross-appeals McBride’s
sentence.
I.
*
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that this opinion should not be published and is not precedent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.
With the assistance of a cooperating witness, state and
federal law enforcement authorities arrested McBride and
Mayweathers while they were in the process of “cooking”, and
preparing to distribute, crack cocaine. Indicted on charges of
conspiracy to distribute and possess with intent to distribute
cocaine base, in violation of 21 U.S.C. § 846, and possession of
cocaine base, with intent to distribute, in violation of 21 U.S.C.
§ 841(a)(1), they were tried and convicted on both counts. McBride
was sentenced, inter alia, to 360 months imprisonment; Mayweathers,
to 324 months.
II.
A.
McBride and Mayweathers have filed motions challenging the
adequacy of their representation on appeal. McBride requests the
appointment of new appellate counsel; authorization to file, pro
se, a supplemental appellate brief; and to dismiss his appeal
without prejudice pending preparation of new appellate briefs.
Mayweathers also requests the appointment of new appellate counsel;
authorization to file, pro se, a supplemental appellate brief; and
an order directing his counsel to allow him access to his trial
record.
Needless to say, counsel is not required to raise all
nonfrivolous issues on appeal, even if a defendant specifically
requests that a particular issue be raised. See Jones v. Barnes,
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463 U.S. 745, 750-54 (1983); Sharp v. Puckett, 930 F.2d 450, 452
(5th Cir. 1991). Moreover, neither McBride nor Mayweathers has
requested to represent himself on appeal, and a defendant is not
entitled to bifurcated representation. See United States v.
Daniels, 572 F.2d 535, 540 (5th Cir. 1978). Accordingly, the
defendants’ motions are DENIED.
B.
1.
McBride contends that the evidence is insufficient to support
his convictions and that the district court erred by excluding from
evidence sexually explicit photographs of the above-referenced
cooperating witness.
Of course, in reviewing a sufficiency of the evidence
challenge, our standard of review is whether, viewing the evidence
in the light most favorable to the Government, a rational trier of
fact could have found the essential elements of the offense beyond
a reasonable doubt. E.g., United States v. Bell, 678 F.2d 547, 549
(5th Cir. 1982)(en banc), aff’d, 462 U.S. 356 (1983). Based upon
our review of the record, the evidence overwhelmingly supports
McBride’s convictions. Id. Moreover, the district court did not
abuse its discretion in excluding the photographs from evidence.
See United States v. Humphrey, 104 F.3d 65, 69-70 (5th Cir.), cert.
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denied, 117 S. Ct. 1833 (1997). And, even had there been error, it
would have been harmless. Id.
2.
Mayweathers contends that the district court erred by limiting
his cross-examination of a government witness, and that the
district court gave an erroneous reasonable doubt instruction.
As is well known, “[r]ulings limiting the scope or extent of
cross-examination are committed to the sound discretion of the
trial court and are reviewed only for abuse of discretion.” See
United States v. Coleman, 997 F.2d 1101, 1105 (5th Cir. 1993),
cert. denied, 510 U.S. 1077 (1994). Even assuming that the
district court erred in limiting the cross-examination, such error
was harmless. See Delaware v. Van Arsdall, 475 U.S. 673, 684
(1986).
We review an instruction to determine whether, as a whole, it
clearly and correctly states the law as applied to the facts of the
case. See United States v. Lara-Velasquez, 919 F.2d 946, 950 (5th
Cir. 1990). The district court correctly instructed the jury
regarding reasonable doubt. See United States v. Williams, 20 F.3d
125, 129 n.2 (5th Cir.), cert. denied, 513 U.S. 891 (1994).
C.
By cross-appeal, the Government contends that the district
court erred by not enhancing McBride’s sentence pursuant to 21
U.S.C. § 841(b)(1)(A)(person convicted of controlled substance
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offense subject to mandatory life sentence if he has two prior
convictions for felony drug offenses which have become final).
McBride counters that the enhancement notice was insufficient; that
the sentence enhancement provision constitutes cruel and unusual
punishment, and is vague and overbroad; and that his prior
convictions constituted a “single criminal episode” for sentence
enhancement purposes.
We will uphold a sentence unless it “(1) was imposed in
violation of law, (2) resulted from an incorrect application of the
guidelines, (3) was outside the guideline range and is
unreasonable, or (4) was imposed for an offense for which there is
no applicable sentencing guideline and is plainly unreasonable.”
United States v. Sandle, 123 F.3d 809, 810 (5th Cir. 1997). And,
we review de novo whether a sentence should be enhanced; the
factual findings relative to sentence enhancement are reviewed for
clear error. Id.; United States v. Wimbish, 980 F.2d 312, 313 (5th
Cir. 1992), cert. denied, 508 U.S. 919 (1993).
The district court sustained McBride’s objections to the
enhancement on grounds that notice of the enhancement was
insufficient; the enhancement constitutes cruel and unusual
punishment; the enhancement provision is unconstitutional as
overbroad and vague; and McBride’s prior convictions constituted
one criminal episode. Based upon our review of the record, we hold
that the district court erred in refusing to enhance McBride’s
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sentence, and that, as required by 21 U.S.C. § 851(a), McBride
received adequate notice prior to trial of the Government’s intent
to seek an enhancement. See United States v. Steen, 55 F.3d 1022,
1025-28 (5th Cir.), cert. denied, 516 U.S. 1015 (1995); United
States v. Gonzales, 79 F.3d 413, 426 (5th Cir.), cert. denied, 117
S. Ct. 183 (1996).
Furthermore, our court has held that it is does not constitute
cruel and unusual punishment to sentence a defendant to life
without parole. See United States v. Fragoso, 978 F.2d 896, 903
(5th Cir. 1992), cert. denied, 507 U.S. 1012 (1993). We also
reject McBride’s contention that the § 841 sentence enhancement
provision is vague and overbroad. See Buckley v. Collins, 904 F.2d
263, 266 (5th Cir.), cert. denied, 498 U.S. 990 (1990); United
States v. Wicker, 933 F.2d 284, 287 (5th Cir.), cert. denied, 502
U.S. 958 (1991). Finally, McBride’s prior convictions do not
constitute a “single criminal episode” for enhancement purposes.
See United States v. Speer, 30 F.3d 605, 613 (5th Cir. 1994), cert.
denied, 513 U.S. 1098 (1995).
III.
For the foregoing reasons, McBride’s and Mayweathers’
convictions are AFFIRMED; Mayweathers’ sentence is AFFIRMED;
McBride’s sentence is VACATED and his case REMANDED to the district
court for sentencing consistent with this opinion.
MOTIONS DENIED; CONVICTIONS AFFIRMED;
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MAYWEATHERS’ SENTENCE AFFIRMED;
MCBRIDE’S SENTENCE VACATED AND REMANDED
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