IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-40992
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TOMMY WAYNE LEE, also known as Black,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 9:00-CR-48-1
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April 2, 2002
Before DAVIS, BENAVIDES, and CLEMENT, Circuit Judges.
PER CURIAM:*
Tommy Wayne Lee appeals his convictions and sentences for drug
trafficking offenses involving cocaine and marijuana. For the
following reasons, the judgment of the district court is AFFIRMED.
The district court did not abuse its discretion in denying
Lee’s motion to sever the cocaine-related counts from the
marijuana-related counts. See United States v. Fortenberry, 914
F.2d 671, 675 (5th Cir. 1990). In light of the court’s limiting
*
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that this opinion should not be published and is not precedent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.
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instructions both during and after the presentation of evidence,
Lee has failed to show that the jury was unable to separately
consider the cocaine conspiracy evidence and the marijuana
conspiracy evidence or that he otherwise suffered clear prejudice.
Id.
Additionally, the district court did not clearly err in
denying Lee’s Batson challenge to the Government’s striking of a
black potential juror. See United States v. Denman, 100 F.3d 399,
404 (5th Cir. 1996); Batson v. Kentucky, 476 U.S. 79 (1986). The
voir dire record supports the district court’s finding that the
prosecutor’s race-neutral explanation for striking the juror was
credible. See id.; Purkett v. Elem, 514 U.S. 765, 768 (1995).
The record reflects that there was sufficient evidence to
support Lee’s convictions. Considering the evidence in the light
most favorable to the Government, a reasonable trier of fact could
have found that the evidence established the essential elements of
the offenses beyond a reasonable doubt. See United States v.
Ortega-Reyna, 148 F.3d 540, 543 (5th Cir. 1998). This
determination is not altered by Lee’s assertion that the
Government’s case was based on unreliable witnesses testifying in
exchange for lesser sentences. Even the uncorroborated testimony
of a co-conspirator who made a plea agreement with the Government
will support a conviction as long as the testimony is not
incredible or insubstantial on its face, and the testimony of Lee’s
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coconspirators is not facially incredible or insubstantial. See
United States v. Osum, 943 F.2d 1394, 1405 (5th Cir. 1991).
There was no abuse of the district court’s broad discretion in
admitting extrinsic-act evidence regarding Lee’s participation in
a 1995 drug offense. See United States v. Parziale, 947 F.2d 123,
129 (5th Cir. 1991). The evidence was admissible under FED. R.
EVID. 404(b) because Lee placed his intent at issue in this case by
pleading not guilty. See United States v. Chavez, 119 F.3d 342,
346 (5th Cir. 1997). Furthermore, the evidence was admissible
under FED. R. EVID. 403 because its high probative value
substantially outweighed the danger of unfair prejudice. Id. at
346-47.
There was also no error in the district court’s decision that
Lee’s offenses should be grouped for sentencing purposes. See
United States v. Hoster, 988 F.2d 1374, 1382 (5th Cir. 1993). Where
the offenses involve substantially the same harm and the offense
level is substantially determined on the basis of the quantity of
drugs, as here, the offenses shall be grouped. U.S.S.G. §
3D1.2(d).
Lee contends that the district court erred in determining that
he failed to satisfy the criteria for an offense-level reduction
under U.S.S.G. § 2D1.1(b)(6). We disagree. See United States v.
Miller, 179 F.3d 961, 963-64 (5th Cir. 1999). Lee has not shown
that he truthfully provided to the Government all information and
evidence he has concerning his offenses or offenses that were part
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of the same course of conduct or of a common scheme or plan. See
U.S.S.G. §§ 2D1.1(b)(6), 5C1.2(5).
Finally, there is no merit to Lee’s assertion that the
district court erred in assessing a Section 3B1.1 upward adjustment
for his leadership role in the cocaine conspiracy. The record
shows that the district court’s application of Section 3B1.1 was
based on Lee’s leadership role in the marijuana conspiracy, not the
cocaine conspiracy.
AFFIRMED.