Opinion
No. 08-4334.
Submitted: December 19, 2008.
Decided: January 21, 2009.
Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Henry E. Hudson, District Judge. (3:06-cr-00482-HEH-1).
Brian J. Grossman, Crowgey Grossman, Richmond, Virginia, for Appellant. Dana J. Boente, Acting United States Attorney, Shana Wallace, Special Assistant United States Attorney, Alexandria, Virginia, for Appellee.
Before MICHAEL, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
Billy Lewis was indicted for possession with intent to distribute five grams or more of cocaine base (Count 1) and possession with intent to distribute cocaine hydrochloride ("cocaine powder") (Count 2). He was found guilty of both counts and sentenced to 252 months of imprisonment. On appeal, Lewis raises the following issues: (1) whether the evidence was sufficient to support his conviction for Count 2; (2) whether the district court erred by failing to give a lesser-included-offense instruction for Count 2; and (3) whether the district court erred by considering historical evidence of Lewis' drug dealing for purposes of sentencing. For the reasons that follow, we affirm.
First, viewing the evidence as required, we find Count 2 is supported by substantial evidence, and therefore the district court properly denied Lewis' motion for acquittal on this count. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Alerre, 430 F.3d 681, 693 (4th Cir. 2005). Second, we find no abuse of discretion in the district court's decision to deny Lewis a lesser-included-offense instruction for possession of cocaine for Count 2. S. Atl. Ltd. P'ship v. Riese, 284 F.3d 518, 530 (4th Cir. 2002) (providing standard). Finally, we perceive no clear error in the district court's factual findings regarding drug weight attributable to Lewis based on his prior drug dealing. United States v. Daughtrey, 874 F.2d 213, 217 (4th Cir. 1989) (providing standard); see United States v. Hodge, 354 F.3d 305, 312-13 (4th Cir. 2004) (referencing U.S. Sentencing Guidelines Manual § 1B1.3(a)(2) cmt. n. 9(B) (2007) and noting that when a defendant has committed multiple offenses similar to the charged offense, that conduct may be considered as relevant conduct for sentencing purposes).
Accordingly, we affirm Lewis' convictions and sentence. Although we grant Lewis' motion to file a pro se supplemental brief, we find no meritorious issues raised therein. 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.