Filed: Oct. 05, 2020
Latest Update: Oct. 06, 2020
Summary: Case: 18-60733 Document: 00515589545 Page: 1 Date Filed: 10/05/2020 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED October 5, 2020 No. 18-60733 Lyle W. Cayce Summary Calendar Clerk United States of America, Plaintiff—Appellee, versus Kevin Lawrence, Defendant—Appellant. Appeals from the United States District Court for the Southern District of Mississippi USDC No. 3:17-CR-149-1 Before Higginbotham, Jones, and Costa, Circuit Judges. Per Cur
Summary: Case: 18-60733 Document: 00515589545 Page: 1 Date Filed: 10/05/2020 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED October 5, 2020 No. 18-60733 Lyle W. Cayce Summary Calendar Clerk United States of America, Plaintiff—Appellee, versus Kevin Lawrence, Defendant—Appellant. Appeals from the United States District Court for the Southern District of Mississippi USDC No. 3:17-CR-149-1 Before Higginbotham, Jones, and Costa, Circuit Judges. Per Curi..
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Case: 18-60733 Document: 00515589545 Page: 1 Date Filed: 10/05/2020
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
October 5, 2020
No. 18-60733
Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Kevin Lawrence,
Defendant—Appellant.
Appeals from the United States District Court
for the Southern District of Mississippi
USDC No. 3:17-CR-149-1
Before Higginbotham, Jones, and Costa, Circuit Judges.
Per Curiam:*
A jury convicted Kevin Lawrence of conspiracy to possess marijuana
with intent to distribute, possession of marijuana with intent to distribute and
aiding and abetting, and use of a communication facility to facilitate a drug
offense. On appeal, Lawrence challenges the sufficiency of the evidence,
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
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No. 18-60733
arguing that the testimony offered by two co-conspirators, Alvin Haynes and
Kendrick Applewhite, was not credible or corroborated by other evidence.
Next, he argues that the Government, in its closing argument rebuttal,
improperly expressed an opinion about the credibility of a defense witness,
Steven Davison, and argued that Davison received the same discovery
materials as Lawrence, a fact that was not in evidence. Finally, he contends
that the district court erroneously included 200 pounds of marijuana in the
drug quantity calculations that was not proven to the jury. After briefing was
completed, Lawrence’s appointed counsel, R. Thomas Rich, filed an
untimely motion to withdraw. Cf. United States v. Wagner, 158 F.3d 901, 902-
03 (5th Cir. 1998).
When a defendant objects to the sufficiency of the evidence in the
district court, we review his challenge de novo. United States v. Chon,
713 F.3d 812, 818 (5th Cir. 2013). We accept “all credibility choices and
reasonable inferences made by the trier of fact which tend to support the
verdict” and resolve conflicts in the evidence in favor of the verdict.
Id.
(internal quotation marks and citations omitted).
As Lawrence acknowledges, his arguments depend on the premise
that Haynes and Applewhite did not present credible testimony at trial. It is
the jury’s province to determine credibility. See United States v. Payne,
99 F.3d 1273, 1278 (5th Cir. 1996). Moreover, Applewhite and Haynes
corroborated each other’s testimony. Both testified that they separately
agreed with Lawrence to violate the law by transporting marijuana. See
Chon,
713 F.3d at 819. Haynes and Applewhite indicated that Lawrence shared the
intent to possess marijuana with intent to distribute and arranged for the
transportation of the marijuana from El Paso, Texas, to Jackson, Mississippi,
and for Applewhite and Davison to take possession of the marijuana. See
United States v. Delgado,
256 F.3d 264, 274 (5th Cir. 2001). Both testified
that they communicated with Lawrence about the transportation of
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No. 18-60733
marijuana by cell phone, both in phone calls and text messages. See United
States v. Haines, 803 F.3d 713, 735 (5th Cir. 2015). The fact that Haynes and
Applewhite received advantages for their testimony does not alone show that
their testimony was incredible or impossible. See United States v. Valdez,
453 F.3d 252, 257 (5th Cir. 2006). Therefore, Lawrence has not
demonstrated that the evidence was insufficient to support his convictions.
See
Chon, 713 F.3d at 818.
Next, Lawrence argues that, in its closing argument rebuttal, the
Government improperly offered an opinion about Davison’s motive to lie to
protect Lawrence and relied on evidence that was not in the record. In
reviewing a claim of prosecutorial misconduct during closing argument, we
first determine de novo whether the prosecutor made an improper remark.
United States v. McCann, 613 F.3d 486, 494 (5th Cir. 2010). If so, we then
determine whether the remark affected the defendant’s substantial rights,
applying an abuse of discretion standard.
Id.
Here, the improper statement about Davison’s access to discovery
materials was immediately followed by an objection and an instruction for the
jury to disregard it. After overruling Lawrence’s objection to the
Government’s comments about Davison’s motive to lie, the district court
instructed the jury that what attorneys argue is not evidence. Jurors are
presumed to follow instructions. United States v. Turner,
674 F.3d 420, 440
(5th Cir. 2012). In addition, there was strong evidence of guilt, including text
messages between Haynes and Lawrence and between Applewhite and
Lawrence. Given the foregoing, the prosecutor’s remarks attacking
Davison’s testimony did not affect Lawrence’s substantial rights. See
id. at
439.
Finally, citing Apprendi v. New Jersey,
530 U.S. 466 (2000), Lawrence
argues that the district court’s calculation of the guidelines range was
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No. 18-60733
erroneous because the marijuana reportedly transported in the months before
the offense were not proven to a jury beyond a reasonable doubt. District
courts may find relevant drug quantities for Sentencing Guideline purposes,
thereby increasing the guidelines range, as long as the sentence imposed is
within the appropriate statutory range. United States v. Doggett, 230 F.3d
160, 166 (5th Cir. 2000). The jury determined that Lawrence was responsible
for between 50 and 100 kilograms of marijuana, which carried a statutory
maximum sentence of 20 years of imprisonment, and he was sentenced below
the statutory maximum to 135 months of imprisonment. Therefore, the
district court’s finding of the drug quantity by a preponderance of the
evidence did not violate Apprendi.
Accordingly, IT IS ORDERED that the judgment of the district
court is AFFIRMED. Counsel’s motion to withdraw is GRANTED.
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