UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 00-40777
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
CHARLES EDWARD RAMEY; GARY RICHARD MCCARLEY,
Defendants - Appellants.
Appeals from the United States District Court
For the Eastern District of Texas
(6:99-CR-76)
June 8, 2001
Before SMITH, DUHÉ, and WIENER, Circuit Judges.
PER CURIAM:1
Appellants Charles Edward Ramey and Gary Richard McCarley
appeal their convictions for conspiracy to manufacture, to possess
with intent to distribute and to distribute methamphetamine in
violation of 21 U.S.C. § 846, and possession with intent to
distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1).
We affirm Ramey’s conviction and dismiss McCarley’s appeal.
McCarley pleads, for the first time in this Court, ineffective
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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opinion should not be published and is not precedent except under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.
assistance of his trial counsel. He essentially argues that
counsel was not well prepared for trial and did not discuss the
case with McCarley or recommend acceptance of a plea agreement that
ultimately could have resulted in a lesser sentence. McCarley
supports these claims only by including in his record excerpts self
serving affidavits executed by himself, his mother and his sister.
No motion has been filed to supplement the record on appeal with
these affidavits therefore they are not properly before us. It is
the rule of this Circuit that claims of inadequate representation
of counsel are not determined on direct appeal when the claim has
not been raised in the district court. United States v. McCaskey,
9 F.3d 368, 380 (5th Cir. 1993). If, however, the record is
sufficiently complete for us to evaluate the merits of the claim,
we will consider them on direct appeal. Id. We find the record in
this case is not sufficiently developed and, therefore, decline to
consider the issue.
Ramey contends that the evidence is insufficient to support
his convictions. We review the evidence in the light most
favorable to the verdict, accept the credibility choices and
reasonable inferences made by the jury, and uphold the conviction
if a reasonable jury could have found that the Government proved
the essential elements of the crimes charged beyond a reasonable
doubt. United States v. McCord, 33 F.3d 1434, 1439 (5th Cir. 1995).
To establish guilt under 21 U.S.C. § 846 the Government must
prove existence of an agreement between two or more persons to
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violate the narcotics law; knowledge of the conspiracy; and
voluntary participation in it. United States v. Mitchell, 31 F.3d
271, 274 (5th Cir. 1994). The jury may infer existence of a
conspiracy from circumstantial evidence. United States v. Thomas,
12 F.3d 1350 (5th Cir. 1994).
To prove violation of 21 U.S.C. § 841(a)(1), the Government
must prove knowing possession of a controlled substance,
methamphetamine in this case, and possession of the methamphetamine
with intent to distribute. United States v. Torres, 114 F.3d 520,
524 (5th Cir. 1997). Possession may be constructive and may result
from possession by another conspirator in furtherance of the
conspiracy under Pinkerton v. United States, 328 U.S. 640 (1946).
The jury was so instructed in this case.
We have carefully reviewed the record and find that the
evidence was more than sufficient to convict on both counts. Ramey
was a supplier of necessary ingredients for the production of
methamphetamine; was present at the house in which the
methamphetamine production occurred while the production was taking
place; his loaded weapon was in the hands of a co-conspirator at
the house when the search warrant was executed.
The court carefully instructed the jury on more than one
occasion that mere presence at the scene would not prove
participation in the conspiracy and that the incriminating
testimony of a cooperating accomplice had to be weighed with great
care. On the record, we are convinced that the Government proved
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the essential elements of the crimes charged beyond a reasonable
doubt.
Appeal of Gary Richard McCarley is DISMISSED.
The conviction of Charles Edward Ramey is AFFIRMED.
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