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United States v. Macon, 97-50729 (1998)

Court: Court of Appeals for the Fifth Circuit Number: 97-50729 Visitors: 21
Filed: Nov. 25, 1998
Latest Update: Mar. 02, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 97-50729 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus KELLY SPENCER MACON; DEANDRE UBECKA FREEMAN, Defendants-Appellants. - - - - - - - - - - Appeal from the United States District Court for the Western District of Texas USDC No. W-97-CR-18-2 - - - - - - - - - - November 4, 1998 Before HIGGINBOTHAM, JONES, and DENNIS, Circuit Judges. PER CURIAM:* Kelly Spencer Macon and Deandre Ubecka Freeman appeal their co
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                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT



                            No. 97-50729
                          Summary Calendar



UNITED STATES OF AMERICA,

                                          Plaintiff-Appellee,

versus

KELLY SPENCER MACON;
DEANDRE UBECKA FREEMAN,

                                          Defendants-Appellants.

                       - - - - - - - - - -
          Appeal from the United States District Court
                for the Western District of Texas
                      USDC No. W-97-CR-18-2
                       - - - - - - - - - -
                         November 4, 1998

Before HIGGINBOTHAM, JONES, and DENNIS, Circuit Judges.

PER CURIAM:*

     Kelly Spencer Macon and Deandre Ubecka Freeman appeal their

convictions and sentences for conspiracy to possess with the

intent to distribute cocaine base (crack) and possession with the

intent to distribute crack.

     Both appellants challenge the district court’s Fourth

Amendment ruling, which denied the motions to suppress, based on

the lessee of the trailer home giving consent to the police for

the search.    From our review of the arguments and the appellant


     *
        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that this opinion should not be published and is not precedent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.
                           No. 97-50729
                                -2-

record, we conclude that the district court’s determination that

the lessee had the authority to give consent for the search of

the entire trailer was not clearly erroneous.     See United States

v. Gonzales, 
121 F.3d 928
, 938-39 (5th Cir. 1997); United States

v. Richard, 
994 F.2d 244
, 250 (5th Cir. 1993); United States v.

Smith, 
930 F.2d 1081
, 1084-85 (5th Cir. 1991).

     Freeman argues that the district court impermissibly limited

defense counsel’s questioning during voir dire by prohibiting

questions concerning potential jurors’ understanding of the

distinctions between different drug offenses.    No clear abuse of

discretion is evident.   See United States v. Williams, 
573 F.2d 284
, 287-88 (5th Cir. 1978).

     Macon argues that the prosecutor’s comment during argument

which mischaracterized the trial testimony of Mesha Reid

necessitates reversal.   Because Macon failed to object to the

comment, we review for plain error.   No plain error is evident.

In light of the overwhelming evidence of Macon’s guilt and in

light of the single instance of the prosecutor’s comment, Macon’s

substantial rights were not affected.     See United States v.

Vaccaro, 
115 F.3d 1211
, 1218 (5th Cir. 1997), cert. denied, 
118 S. Ct. 689
(1998); United States v. Calverley, 
37 F.3d 160
, 162-

64 (5th Cir. 1994) (en banc).

     Both appellants challenge their sentences.    Macon argues

that the district court erred in determining the amount of crack

for which Macon was held accountable.     The information about the

drug quantity came from Richard Messina, and Macon argues that

Messina’s testimony lacked credibility as well as consistency and
                           No. 97-50729
                                -3-

that the information lacked corroboration.    Our review of the

record reveals that the district court’s finding is plausible and

thus, no clear error is apparent.     See United States v. Bermea,

30 F.3d 1539
, 1575 (5th Cir. 1994).

     Freeman argues that the district court erred in ordering his

federal sentence to be served consecutively to his state sentence

for aggravated robbery.   He asserts that the district court had

discretion, pursuant to U.S.S.G. § 5G1.3(c), p.s., to order the

sentence to be served consecutively to, concurrently with, or

partially concurrent with the state sentence; such discretion

called for the court to evaluate certain enumerated factors from

§ 5G1.3's commentary; and the court’s incorrect view of the

mandatory nature of the consecutive sentence requires a remand

for the court to exercise its discretion.    No plain error is

evident because, even assuming that the court did not consider a

concurrent sentence, the circumstances of this case do not

indicate that a concurrent sentence would be warranted.    Thus,

Freeman’s substantial rights were not affected.     See 
Calverley, 37 F.3d at 165
.

     AFFIRMED.

Source:  CourtListener

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