UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-30134
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAY JOHNSON,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Middle District of Louisiana
(94-CR-32-A-M2)
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November 28, 1995
Before JOLLY, JONES and STEWART, Circuit Judges.
PER CURIAM:*
Appellant Johnson, serving a term of 97 months
imprisonment and other penalties for conspiracy to possess with
intent to distribute and to distribute cocaine and unlawful use of
a communications facility, appeals his conviction and sentence on
several grounds. Finding none persuasive, we affirm.
*
Local Rule 47.5 provides: "The publication of opinions that have no
precedential value and merely decide particular cases on the basis of well-settled
principles of law imposes needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the Court has determined that this opinion
should not be published.
1. Johnson asserts that the district court erred in
denying his motion to suppress evidence, because there was no basis
to conduct a warrantless search of the house where the cocaine was
found. The court held, however, that under the doctrine of
inevitable discovery, the search was justified. United States v.
Wilson, 36 F.3d 1298, 1304 (5th Cir. 1994). Johnson does not
challenge this conclusion, so this issue is deemed abandoned.
Evans v. City of Marlin, Texas, 986 F.2d 104, 106 n.1 (5th Cir.
1993). In any event, the district court's conclusion of inevitable
discovery was supported by the record.
2. Johnson argues that the jury should have been
instructed on the defense of entrapment. The testimony did not
make "a prima facie showing that government conduct created a
substantial risk that an offense would be committed by a person
other than one ready to commit it." United States v. Hudson, 982
F.2d 160, 162 (5th Cir.), cert. denied, 114 S. Ct. 100 (1993)
(internal quotation and citation omitted). Johnson voluntarily
accepted the U.P.S. package and admitted that he hid only the two
baby powder cans containing cocaine after he discovered the
government's transmitter.
3. Johnson challenges the prosecutor's use of the slang
term "key" for a kilo of cocaine in his closing arguments. Under
the total circumstances, this comment did not constitute misconduct
warranting a new trial. The court did not abuse his discretion in
failing to grant a new trial.
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4. To the extent we understand Johnson's argument
concerning the constitutionality of the statute prohibiting the
distribution of controlled substances, it is meritless. He does
not argue that his conduct could not have been described as illegal
possession with intent to distribute cocaine; he contends only that
the law does not distinguish his conduct from that of DEA agents,
lab workers, and the UPS delivery man who were also involved in the
case. This is nonsense. The law sufficiently defines the criminal
conduct that it prohibits. To the extent that Johnson argues
selective prosecution, this must fail, because there is no
similarity between him and the law enforcement officers and helpers
who engaged in the controlled delivery here.
5. Johnson finally asserts that he did not obstruct
justice within the meaning of the sentencing guidelines when he
testified falsely at trial. Although it is true that not every
misstatement by a defendant will supply grounds for an obstruction
of justice sentence enhancement, the district court here found that
Johnson's false testimony could have misled the jury as to whether
he had guilty knowledge of the package's contents. This finding,
which supports an obstruction of justice enhancement, is not
clearly erroneous.
The judgement and sentence are AFFIRMED.
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