US v. Javis McKenzie

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:07-cr-00155-JFA-3. Copies to all parties and the district court/agency. [998431186] [09-4301]

US v. Javis McKenzie

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4301 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JAVIS SHERARD MCKENZIE, Defendant - Appellant.

Appeal from the United States District Court for the District of South Carolina, at Columbia. Joseph F. Anderson, Jr., District Judge. (3:07-cr-00155-JFA-3) Submitted: August 26, 2010 Decided: September 23, 2010

Before WILKINSON, KING, and SHEDD, Circuit Judges. Affirmed by unpublished per curiam opinion. John M. Ervin, III, Darlington, South Carolina, for Appellant. Stacey Denise Haynes, Assistant United States Attorney, Columbia, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM: A federal grand jury charged Javis Sherard McKenzie in a third superseding indictment with conspiracy to possess with intent to distribute and to distribute fifty grams or more of cocaine base ("crack") and five kilograms or more of cocaine, in violation of 21 U.S.C. § facility 846 (2006) (a (Count to One), 1 use facilitate of a

communication

telephone)

the

commission of a felony under the Controlled Substances Act, in violation of 21 U.S.C. § 843(b) (2006) and 18 U.S.C. § 2 (2006) (Counts Seven, Eight, and Nine), and possession of firearms and ammunition by a convicted felon, in violation of 18 U.S.C.

§§ 922(g)(1) and 924(a)(2) & (e) (2006) (Count Seventy-Nine). The jury convicted McKenzie on all counts. The district court

sentenced McKenzie to concurrent terms of imprisonment of 480 months on Count One, forty-eight months on each of Counts Seven through Nine, and 120 months on Count Seventy-Nine, a downward variance from the federal guidelines range of life imprisonment. McKenzie timely appealed. Counsel has filed a brief

pursuant to Anders v. California, 386 U.S. 738 (1967), finding no meritorious grounds for appeal but questioning whether the district court erred by denying McKenzie's Fed. R. Crim. P. 29

The conspiracy charge originally also included marijuana, but this portion of the indictment was dismissed. 2

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motion for judgment of acquittal on Counts One and Seven through Nine. McKenzie filed a pro se supplemental brief. 2 We affirm.

McKenzie's attorney challenges the denial of the Rule 29 motion, but to ultimately support concludes that the evidence This was court

sufficient

McKenzie's

convictions.

reviews the district court's decision to deny a Rule 29 motion de novo. United States v. Reid, 523 F.3d 310, 317 (4th Cir.), Where, as here, the motion

cert. denied, 129 S. Ct. 663 (2008).

was based on a claim of insufficient evidence, "[t]he verdict of a jury must be sustained if there is substantial evidence,

taking the view most favorable to the Government, to support it." 523 Glasser v. United States, 315 U.S. 60, 80 (1942); Reid, F.3d at 317. "Substantial of fact evidence accept is evidence as that a

reasonable

finder

could

adequate

and

sufficient to support a conclusion of a defendant's guilt beyond a reasonable doubt." marks and citation Reid, 523 F.3d at 317 (internal quotation omitted). This court "can reverse a

conviction on insufficiency grounds only when the prosecution's failure is clear." United States v. Moye, 454 F.3d 390, 394

In his pro se brief, McKenzie challenges the admission of testimony concerning aspects of gang life and the lack of a curative jury instruction addressing sequestration of witnesses. We conclude that his claims are without merit. 3

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(4th Cir. 2006) (en banc) (internal quotation marks and citation omitted). Our review of the record reveals that the evidence supported the jury's verdict. Regarding the conspiracy count,

testimony disclosed that McKenzie worked with several others to distribute large quantities of cocaine and crack. F.3d at 317 (stating was required that, to to prove (1) See Reid, 523 violation, to

§ 846 an

"[G]overnment

establish

agreement

possess with intent to distribute cocaine base existed between two or more persons; (2) [defendant] knew of the conspiracy; and (3) [defendant] knowingly and voluntarily became part of the conspiracy."). Turning to Counts Seven through Nine, testimony

and McKenzie's recorded telephone conversations established that McKenzie knowingly used a telephone on the relevant days to

facilitate the conspiracy.

See United States v. Henao-Melo, 591

F.3d 798, 802 n.5 (5th Cir. 2009) ("§ 843(b) requires proof that a defendant (1) knowingly or intentionally (2) used a

communication facility (3) to facilitate the commission of a drug offense."), cert. denied, 130 S. Ct. 2392 (2010). In accordance with Anders, we have reviewed the record in this case and have found no meritorious issues for appeal. We therefore affirm McKenzie's convictions and sentence. This

court requires that counsel inform McKenzie, in writing, of his right to petition the Supreme Court of the United States for 4

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further review.

If McKenzie requests that a petition be filed,

but counsel believes that such a petition would be frivolous, then counsel may move in this court for leave to withdraw from representation. Counsel's motion must state that a copy thereof We dispense with oral argument because

was served on McKenzie.

the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the

decisional process. AFFIRMED

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