IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-40844
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MIKE SMITH, JR.; ROBERT LEE GEORGE,
Defendants-Appellants.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:98-CR-108-2
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May 31, 2000
Before DAVIS, EMILIO M. GARZA and DENNIS, Circuit Judges.
PER CURIAM:*
Robert Lee George, Jr., appeals his jury-trial convictions
for conspiracy to distribute cocaine and possession with the
intent to distribute cocaine. George’s codefendant, Mike Smith,
Jr., appeals his jury-trial conviction for conspiracy to
distribute cocaine. Smith also appeals the life sentence imposed
by the district court after his conviction.
Neither appellant renewed their motions for judgments of
acquittal at the close of all of the evidence. Thus, their
challenges to the sufficiency of the evidence are reviewed for
*
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that this opinion should not be published and is not precedent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. 99-40844
-2-
plain error only. See United States v. McCarty, 36 F.3d 1349,
1358 (5th Cir. 1994). A conviction may be reversed under the
plain-error standard only to avoid a “manifest miscarriage of
justice.” United States v. Parker, 133 F.3d 322, 328 (5th Cir.
1998).
The evidence adduced at trial established that Smith
negotiated the terms and arranged the transaction of July 22,
1999. He then exchanged crack cocaine - which he himself claimed
was from George - for money, and gave a portion of the money to
George. The evidence thus established that Smith and George
conspired together to violate the narcotics laws. See United
States v. Smith, 203 F.3d 884, 887 (5th Cir. 2000).
The evidence also established that George possessed crack
cocaine with the intent to distribute it. The Government
presented tape-recorded evidence wherein Smith attributed the
cocaine to George. In addition, George had possession of
currency given to complete the transaction when he was arrested.
Based on such, a jury could reasonably have inferred either that
George had actual possession of the crack before it was
distributed, or that George had constructive possession of the
crack. See United States v. Cardenas, 9 F.3d 1139, 1158 (5th
Cir. 1993).
Smith’s due-process challenge to the Sentencing Guidelines
has been rejected not only by this court, but by the Supreme
Court. See Mistretta v. United States, 488 U.S. 361, 412 (1989);
United States v. Guajardo, 950 F.2d 203, 206 (5th Cir. 1991.)
His equal-protection argument also fails. Cf. Harris v. Johnson,
No. 99-40844
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81 F.3d 535, 541 (5th Cir. 1996). Smith contends that the
district court erred in attributing crack cocaine to him based on
assertions made by an admitted drug dealer. However, Smith fails
to demonstrate that the district court’s credibility
determination was clearly erroneous. See United States v. Vital,
68 F.3d 114, 120 (5th Cir. 1995).
AFFIRMED.