IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-41387
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
STEVIE WAYNE JOHNSON,
Defendant-Appellant
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 9:99-CR-27-1
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July 30, 2002
Before JOLLY, PARKER, and DENNIS, Circuit Judges.
PER CURIAM:*
Stevie Wayne Johnson (Johnson) appeals his convictions and
sentences for conspiracy to distribute and possess with intent to
distribute cocaine and possession with intent to distribute cocaine
in violation of 21 U.S.C. §§ 841(a)(1), 846. He argues that the
district court’s application of United States Sentencing Guidelines
§ 2D1.1(c)(3) violated Apprendi v. New Jersey, 530 U.S. 466 (2000),
that the evidence was insufficient to sustain his convictions, and
*
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this opinion should not be published and is not precedent except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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that the district court erred in adjusting his offense level upward
under U.S.S.G. §§ 3B1.1(b) and 3C1.1.
Johnson’s Apprendi argument is without merit as we have held
that a sentencing court’s use of the Guidelines’ drug quantity
table to determine a defendant’s base offense level does not
violate Apprendi, even when the question of drug quantity has not
been submitted to jury, if the sentence imposed does not exceed the
statutory maximum under 21 U.S.C. § 841(b)(1)(C). See United
States v. McWaine, 290 F.3d 269 (5th Cir. 2002). As the jury
retains sole responsibility for determining the weight and
credibility of the evidence and because Johnson has failed to show
that the corroborated testimony of his co-conspirators was
incredible or otherwise insubstantial on its face, he has failed to
show that the evidence was insufficient to sustain his convictions.
See United States v. Casilla, 20 F.3d 600, 602 (5th Cir. 1994);
United States v. Gibson, 55 F.3d 173, 181 (5th Cir. 1995); United
States v. Hernandez, 962 F.2d 1152, 1157 (5th Cir. 1992). Finally,
Johnson has failed to show that the district court clearly erred in
adjusting his offense level upward under U.S.S.G. §§ 3B1.1(b) and
3C1.1. See United States v. Miranda, 248 F.3d 434, 446 (5th Cir.
2001), cert. denied, 122 S. Ct. 823 (2002); United States v.
Odiodio, 244 F.3d 398, 404 (5th Cir. 2001); United States v.
Ronning, 47 F.3d 710, 711 (5th Cir. 1995).
AFFIRMED.
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