UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5193
SWANSON DALTON,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Virginia, at Danville.
Jackson L. Kiser, Chief District Judge.
(CR-93-171-D)
Submitted: September 24, 1996
Decided: October 17, 1996
Before WIDENER and HAMILTON, Circuit Judges, and
BUTZNER, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Locke T. Clifford, CLIFFORD, CLENDENIN & O'HALE, Greens-
boro, North Carolina, for Appellant. Robert P. Crouch, Jr., United
States Attorney, Joseph W. H. Mott, Assistant United States Attorney,
Jeb Terrian, Third-Year Law Intern, Roanoke, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Swanson Dalton appeals his conviction and 360-month sentence
for conspiracy to distribute cocaine, 21 U.S.C.§ 846 (1994), and
attempting to possess with intent to distribute cocaine, 21 U.S.C.
§ 841(a)(1) (1994). We affirm.
I
Evidence at trial showed that Dalton was a leader of a large cocaine
conspiracy operating in the Danville, Virginia, area. A confidential
informant, Danny Marshall, made several purchases of cocaine from
members of the Dalton operation. Marshall subsequently began nego-
tiating the purchase from Dalton of five kilograms of cocaine. Wit-
nesses, including Marshall, testified about the organization and the
planned sale of the five kilograms. Additionally, three taped tele-
phone conversations--one between Marshall and Dalton--concerning
this transaction were introduced at trial.
Dalton first claims that the prosecutor improperly revealed to the
jury, through Marshall's testimony, that Dalton had a criminal record.
Prior to trial, the court granted Dalton's motion in limine, in which
Dalton requested the government to instruct its witnesses not to men-
tion Dalton's criminal record during trial. While testifying, Marshall
said that he shared with many of his drug contacts an interest in car
racing. The prosecutor asked whether Dalton was racing cars. Mar-
shall replied, "He was at first. . . but I think at the time he had went
[sic] to pull a little time." Dalton objected, and the judge immediately
instructed the jury to disregard Marshall's statement.
During a break, Dalton moved for a mistrial based on the prosecu-
tor's alleged violation of the court's instructions. Marshall was ques-
tioned about what prompted his comment. Initially, he stated that the
2
prosecutor had not instructed him not to mention Dalton's record;
however, Marshall later said that he was not sure whether he had
received such an instruction. The district court overruled the motion,
finding the comment "innocuous," and noting that "if you blinked you
would have missed it." Marshall's testimony resumed and continued
at length.
An appellant claiming prosecutorial misconduct "must show that
the remarks were improper and that they prejudicially affected the
defendant's substantial rights so as to deprive the defendant of a fair
trial." United States v. Adam, 70 F.3d 776, 780 (4th Cir. 1995) (inter-
nal citation and quotation omitted). In determining prejudice, a court
examines:
(1) the degree to which the prosecutor's remarks have a ten-
dency to mislead the jury and to prejudice the accused; (2)
whether the remarks were isolated or extensive; (3) absent
the remarks, the strength of competent proof introduced to
establish the guilt of the accused; and (4) whether the com-
ments were deliberately placed before the jury to divert
attention to extraneous matters.
Id. at 780 (citation omitted). Additionally, courts consider whether the
remarks were invited, United States v. Young, 470 U.S. 1, 12-13
(1985), and the remedial effect of any curative instructions. United
States v. Harrison, 716 F.2d 1050, 1053 (4th Cir. 1983), cert. denied,
466 U.S. 972 (1984).
It is highly questionable whether there was any prosecutorial mis-
conduct in this case. Assuming that there was, however, the miscon-
duct was not so serious as to deprive Dalton of a fair trial. The
evidence against Dalton was extremely strong, the reference to his
record was an isolated remark made in the middle of Marshall's
extensive testimony, there is no evidence that the comment was made
deliberately in an attempt to divert the jury's attention, and the judge
gave an immediate curative instruction.
II
Dalton also claims that he was wrongly sentenced as a career
offender. He was arrested in July 1988 and charged with several state
3
drug offenses. In December 1988, while awaiting trial for the July
offenses, he was arrested again on a drug charge. Dalton was con-
victed and imprisoned on all of these state charges, which constituted
the two prior convictions on which his career offender status was
based. See United States Sentencing Commission, Guidelines
Manual, § 4B1.1 (Nov. 1994).
Dalton claims on appeal that the December offense should not have
been included because it was part of the same course of conduct as
the present federal offenses. However, Dalton raises this claim for the
first time on appeal, and has therefore waived it, United States v.
Grubb, 11 F.3d 426, 440-41 (4th Cir. 1993), absent plain error.
United States v. Olano, 507 U.S. 725, 731-35 (1993). Our review of
the materials before us reveals that there was no plain error in this
case. Significantly, there was no credible showing that Dalton was
involved in drug trafficking during the period between his December
1988 arrest and early 1993, when the instant federal conspiracy was
alleged to have begun.
III
We accordingly affirm Dalton's conviction and sentence. We dis-
pense with oral argument because our review of the materials before
us reveals that argument would not aid the decisional process. The
motion to file a supplemental appendix is granted.
AFFIRMED
4