UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 05-5142



UNITED STATES OF AMERICA,

                                                Plaintiff - Appellee,

          versus


DAVID JOE SHELTON,

                                               Defendant - Appellant.


Appeal from the United States District Court for the Western
District of Virginia, at Abingdon. James P. Jones, Chief District
Judge. (CR-04-45)


Submitted:   August 23, 2006             Decided:   September 14, 2006


Before WILKINSON and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


David D. Walker, DAVID D. WALKER, P.C., Salem, Virginia, for
Appellant.    Dennis H. Lee, Special Assistant United States
Attorney, Abingdon, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

            David Joe Shelton appeals his convictions and sentence

for conspiracy with intent to distribute at least 111,940 40-

milligram oxycodone tablets, in violation of 21 U.S.C. § 841(a)(1)

(2000) (Count One), possessing with intent to distribute at least

the same quantity of oxycodone tablets, in violation of 21 U.S.C.

§ 841(a)(1) (Count Two), and engaging in a continuing criminal

enterprise (“CCE”), in violation of 21 U.S.C. § 848 (2000) (Count

Three).    Finding no reversible error, we affirm.

            Shelton’s first issue on appeal is that the district

court abused its discretion in limiting his cross-examination of

the Government’s cooperating witnesses. Shelton contends the court

impermissibly restricted his ability to effectively cross-examine

the Government’s witnesses by prohibiting cross-examination on the

potential punishments the cooperating witnesses would have faced

had they not elected to cooperate with the Government.

            A district court’s decision to limit cross-examination is

reviewed for abuse of discretion.               United States v. Scheetz, 

, 184 (4th Cir. 2002).           Under the Confrontation Clause, a

defendant    has   the    right   to     cross-examine        witnesses   who   are

cooperating with the Government about potential sources of bias.

United    States   v.    Cropp,   

,   358    (4th   Cir.   1999).

However, the trial court retains the discretion to place reasonable

limits on cross-examination based on concerns about, among other


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things, harassment, prejudice, confusion, repetition, or relevance.

Delaware v. Van Arsdall, 

, 678-79 (1986).               This court

has   “upheld   restricting    cross-examination        to   the   minimum   and

maximum penalties the cooperating government witness was facing,

whether the cooperating government witness was testifying to gain

a reduced sentence, and the terms of his plea agreement concerning

a downward departure.”        

(citing United

States v. Ambers, 

, 176-77 (4th Cir. 1996).             An improper

denial of an opportunity to examine a witness for bias is subject

to harmless error review.       United States v. Turner, 

,

430-31 (4th Cir. 1999).

           With this framework in mind, we conclude the limitation

imposed did not amount to an abuse of discretion.             Pursuant to its

ruling on the Government’s motion in limine, the court prohibited

defense   counsel   from   asking   the     witnesses    detailed    questions

regarding the possible sentences they might have faced had they not

cooperated with the Government.           However, the court did permit

counsel to ask general questions of the Government’s witnesses,

such as whether they had secured a favorable bargain by assisting

the Government or whether the Government had agreed to forego

criminal prosecution in its entirety.           Restricting counsel from

delving into the particular details of the potential sentences each

witness could have, but did not necessarily face was an appropriate

discretionary limitation; even with this limitation, Shelton’s


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attorney ably illustrated that each witness had a motive for

testifying against Shelton.          It was then up to the jury to

determine how much weight each witness’s testimony should be given

in light of that motivation.        To have allowed further questioning

on this issue would have simply been repetitive and distracting.

              Shelton next argues the Government violated his rights

under Brady v. Maryland, 

(1963), by failing to turn

over impeachment evidence. To prove a Brady violation, a defendant

must show he requested the undisclosed evidence and it was (1)

favorable; (2) material; and (3) that the prosecution had it and

failed to disclose it.       See Moore v. Illinois, 

, 794-95

(1972); United States v. Stokes, 

, 502 (4th Cir. 2001).

Evidence is “favorable” not only when it would tend to exculpate

the accused, but also when it can be used to impeach Government

witnesses.     See United States v. Bagley, 

, 676 (1985);

United States v. Trevino, 

, 189 (4th Cir. 1996).

Evidence tending to impeach a Government witness must be disclosed

to a defendant if known to the Government.                Giglio v. United

States, 

, 153-55 (1972). Evidence is material if there

is a reasonable probability its disclosure would have produced a

different outcome.     See 

; United States v.

Kelly,   

,   936   (4th   Cir.   1994).     A   “reasonable

probability” of a different result is shown when the Government’s




                                    - 4 -
failure to disclose evidence “undermines confidence in the outcome

of the trial.”     

.

            Shelton’s Brady claim is predicated on a statement from

a confidential informant (“CI”), Teresa Christian, regarding three

controlled purchases of OxyContin she made from another individual

involved    in   the   drug   conspiracy,   Jerry   Palmer.       The   defense

maintains that, although the Government did not call Ms. Christian

to testify, the defense could have used her statement to impeach

another Government witness, Melissa Rowe.           Ms. Rowe testified to

the nature of Shelton’s relationship with Palmer and the frequency

with which she purchased narcotics from both men.

            Shelton’s argument fails for two reasons. First, because

Ms. Christian’s statement did not actually contradict Ms. Rowe’s

trial testimony, the statement had no impeachment value.                However,

even if the statement did have some measure of impeachment value,

the argument nonetheless fails because the Government properly

disclosed Ms. Christian’s statement to counsel. The record reveals

that, prior to trial, defense counsel received a copy of the

transcript from the tapes of Ms. Christian’s controlled purchases,

as   well   as   the    tapes   themselves,   and    that   the    prosecutor

particularly identified Ms. Christian as the CI involved in those

controlled purchases; defense counsel conceded as much at the post-

verdict hearing on Shelton’s motion for judgment of acquittal and

a new trial.


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          Shelton next maintains the district court abused its

discretion in failing to instruct the jury that it could not

convict Shelton of either Count One or Count Three simply because

the   evidence   established   the   existence       of   a   buyer-seller

relationship.    We review a district court’s decision regarding

whether to give a jury instruction, and the content of that

instruction for an abuse of discretion.     United States v. Burgos,

, 935 (4th Cir. 1995).    The facts of this case reveal no

such abuse of discretion. In fact, the record establishes that the

district court included the requested language in its instruction

relevant to Count Three, the CCE charge.         Further, although the

district court did not present this particular language in its

instruction on Count One, as Shelton acknowledges in his brief, the

district court sua sponte dismissed the conviction on this count.

Thus, even assuming the court should have included the requested

language, any potential error is moot.

          Shelton’s   penultimate    argument   is    that    the   evidence

presented at trial was insufficient to support the guilty verdict

on Count Three because the evidence did not conclusively show that

he managed or supervised five or more individuals.              This court

reviews the denial of a Rule 29 motion de novo.           United States v.

Alerre, 

, 693 (4th Cir. 2005).           Where, as here, the

motion was based on a claim of insufficient evidence, “[t]he

verdict of a jury must be sustained if there is substantial


                                - 6 -
evidence, taking the view most favorable to the Government, to

support it.”   Glasser v. United States, 

, 80 (1942).

This court “ha[s] defined ‘substantial evidence’ as ‘evidence that

a reasonable finder of fact could accept as adequate and sufficient

to support a conclusion of a defendant’s guilt beyond a reasonable

doubt.’” 

(quoting United States v. Burgos,

, 862 (4th Cir. 1996) (en banc)).       This court “must

consider circumstantial as well as direct evidence, and allow the

government the benefit of all reasonable inferences from the facts

proven to those sought to be established.”        United States v.

Tresvant, 

, 1021 (4th Cir. 1982).   This court “may not

weigh the evidence or review the credibility of the witnesses.”

United States v. Wilson, 

, 234 (4th Cir. 1997).

          To prove a CCE, the Government must show:          (1) the

defendant committed a felony violation of federal narcotics laws;

(2) the crime was part of a continuing series of such violations;

(3) the series of violations was undertaken in agreement with at

least five other persons; (4) the defendant managed, supervised, or

organized these other persons; and (5) the defendant received

substantial income or resources from the enterprise. United States

v. Stewart, 

, 254 (4th Cir. 2001).    We have explained

that lower courts are to give a “common sense” construction to the

management element, “bearing in mind that the statute is intended

to reach the leaders of the drug trade.”   

establish


                              - 7 -
the management element, the Government need not “prove that the

five individuals were supervised and acted in concert at the same

time” or that the five individuals were under direct or immediate

control of Shelton.    See United States v. Ricks, 

, 891

(4th Cir. 1989).

            Upon our review of the record, we conclude the Government

presented ample evidence from which the jury could conclude Shelton

engaged in a CCE.       The Government presented the testimony of

Franklin Payne, Harrison Street, Amy Lester, and Elizabeth Messer,

all of whom testified to selling oxycodone for and at the direction

of Shelton. Further, Ms. Lester and Ms. Messer both testified that

their   husbands,   Harold     Lester     and   Gary   Messer     respectively,

similarly sold narcotics for Shelton.             These witnesses explained

that in exchange for selling Shelton’s drugs, they received payment

from him in the form of oxycodone pills.            Ms. Lester detailed the

frequency with which Shelton would come to her home in order to

replenish   their   supplies    or   to    pick   up   purchase    money.   In

addition, the jury heard testimony from ATF Agent Yoh, who detailed

Shelton’s statement to him in which Shelton admitted that Brian

Perkins and Jerry Palmer also sold narcotics for him.

            The Government’s evidence amply demonstrated that Shelton

was not merely a member of this distribution scheme or an oxycodone

addict, as the defense suggested, but was in fact a leader therein.

Shelton admitted at trial to making seven trips to Mexico for the


                                     - 8 -
sole purpose of purchasing oxycodone in the form of OxyContin.              In

his statement to Agent Yoh, Shelton admitted to making at least

twenty such trips. This evidence supports the Government’s theory,

which the jury plainly adopted:             that Shelton was not a mere

addict, but a leader in this wide-scale oxycodone distribution

organization.

            Shelton’s last challenge is to the district court’s use

of   the   probation    officer’s   calculation   of    the   drug    quantity

attributable    to     him.   Shelton   maintains      that   the    probation

officer’s reliance on his statements to Agent Yoh to calculate the

drug quantity attributable to him was improper because Shelton gave

those statements while under duress; thus, Shelton contends, the

court clearly erred in adopting that calculation and basing his

sentence thereon.

            When reviewing the district court’s application of the

Sentencing Guidelines, this court reviews findings of fact for

clear error.    United States v. Green, 

, 456 (4th Cir.),

cert. denied, 

(2006).        Review of the record reveals

no such clear error.      Shelton’s claim that his statements to Agent

Yoh were made under duress amounts to nothing more than a self-

serving assertion that is unsubstantiated by the record. At trial,

Agent Yoh, an ATF agent for five years who also served with the

DEA, testified that Shelton appeared normal and was not exhibiting

any signs of duress or stress during the course of the interviews.


                                    - 9 -
Agent   Yoh    reiterated        this    testimony   at     sentencing,       where    he

testified     that   Shelton      did    not    appear    to    be   intoxicated,      or

“without his faculties.”            There is simply no basis on which to

conclude the district court committed clear error in relying on the

pre-sentence report, which was based on Shelton’s uncoerced and

voluntary statements to Agent Yoh.

              For    the     foregoing      reasons,       we     affirm      Shelton’s

convictions and sentence.           We dispense with oral argument because

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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