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    1) The court affirmed Cleve Johnson's convictions for conspiracy to distribute methamphetamine and attempt to possess with intent to distribute methamphetamine. It found sufficient evidence to show that Johnson and his cousin Melvin Johnson conspired during the charged time period and that Johnson took substantial steps towards possessing methamphetamine with intent to distribute. 2) The court held that facilitating drug sales can constitute participation in a conspiracy. It also found that the evidence could suggest Melvin Johnson was more than a mere facilitator in the conspiracy. 3) Regarding the attempt conviction, the court held that Johnson's negotiations to purchase drugs, procuring of cash, and driving to the sale location with money constituted substantial steps towards possessing drugs

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    1) The court affirmed Cleve Johnson's convictions for conspiracy to distribute methamphetamine and attempt to possess with intent to distribute methamphetamine. It found sufficient evidence to show that Johnson and his cousin Melvin Johnson conspired during the charged time period and that Johnson took substantial steps towards possessing methamphetamine with intent to distribute. 2) The court held that facilitating drug sales can constitute participation in a conspiracy. It also found that the evidence could suggest Melvin Johnson was more than a mere facilitator in the conspiracy. 3) Regarding the attempt conviction, the court held that Johnson's negotiations to purchase drugs, procuring of cash, and driving to the sale location with money constituted substantial steps towards possessing drugs

    Original Description:

    Filed: 2011-01-31 Precedential Status: Non-Precedential Docket: 09-4837

    Original Title

    United States v. Johnson, 4th Cir. (2011)

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    1) The court affirmed Cleve Johnson's convictions for conspiracy to distribute methamphetamine and attempt to possess with intent to distribute methamphetamine. It found sufficient evidence to show that Johnson and his cousin Melvin Johnson conspired during the charged time period and that Johnson took substantial steps towards possessing methamphetamine with intent to distribute. 2) The court held that facilitating drug sales can constitute participation in a conspiracy. It also found that the evidence could suggest Melvin Johnson was more than a mere facilitator in the conspiracy. 3) Regarding the attempt conviction, the court held that Johnson's negotiations to purchase drugs, procuring of cash, and driving to the sale location with money constituted substantial steps towards possessing drugs

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    1) The court affirmed Cleve Johnson's convictions for conspiracy to distribute methamphetamine and attempt to possess with intent to distribute methamphetamine. It found sufficient evidence to show that Johnson and his cousin Melvin Johnson conspired during the charged time period and that Johnson took substantial steps towards possessing methamphetamine with intent to distribute. 2) The court held that facilitating drug sales can constitute participation in a conspiracy. It also found that the evidence could suggest Melvin Johnson was more than a mere facilitator in the conspiracy. 3) Regarding the attempt conviction, the court held that Johnson's negotiations to purchase drugs, procuring of cash, and driving to the sale location with money constituted substantial steps towards possessing drugs

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    of 10

    UNPUBLISHED

    UNITED STATES COURT OF APPEALS


    FOR THE FOURTH CIRCUIT

    No. 09-4837

    UNITED STATES OF AMERICA,


    Plaintiff - Appellee,
    v.
    CLEVE ALEXANDER JOHNSON, a/k/a Cuz,
    Defendant - Appellant.

    Appeal from the United States District Court for the Middle
    District of North Carolina, at Greensboro. Thomas D. Schroeder,
    District Judge. (1:08-cr-00233-TDS-1)

    Submitted:

    December 16, 2010

    Decided:

    January 31, 2011

    Before NIEMEYER, KEENAN, and WYNN, Circuit Judges.

    Affirmed by unpublished per curiam opinion.

    Seth A. Neyhart, STARK LAW GROUP, PLLC, Chapel Hill, North


    Carolina, for Appellant. Anna Mills Wagoner, United States
    Attorney, Randall S. Galyon, Assistant United States Attorney,
    Greensboro, North Carolina, for Appellee.

    Unpublished opinions are not binding precedent in this circuit.

    PER CURIAM:
    Cleve
    Johnson)

    Alexander

    appeals

    from

    Johnson
    his

    (hereinafter,

    convictions

    for

    Cleve

    or

    conspiracy

    to

    distribute methamphetamine and attempt to possess with intent to


    distribute methamphetamine and his resulting 200 month sentence.
    After carefully considering his claims on appeal, we affirm.

    I.
    Johnson

    first

    asserts

    that

    there

    was

    insufficient

    evidence to show that he and his cousin Melvin Johnson conspired


    during
    evidence

    the

    charged

    charged

    concerning
    conspiracy 1

    time
    a
    and

    period.

    November
    that

    2007

    Melvin

    Johnson

    argues

    transaction
    was

    not

    that

    the

    predated

    the

    involved

    in

    any

    planned distribution of a pound of methamphetamine in December


    he only acted a facilitator.

    According to Johnson, since the

    other conspirators were Government agents, the elimination of


    Melvin as a conspirator would clear Cleve, as well.

    Johnson also claims that the evidence of the deal before


    the charged dates in the conspiracy resulted in a constructive
    amendment to his indictment. However, the beginning and ending
    dates of a conspiracy are not elements of the offense, so proof
    of different dates could never raise the specter of conviction
    for a different crime.
    See United States v. Benson, 591 F.3d
    491, 497 (6th Cir. 2010) (holding that [w]hen an indictment
    uses the language on or about, a constructive amendment does
    not exist when the proof offered regards a date reasonably near
    the date alleged in the indictment).

    defendant

    challenging

    evidence faces a heavy burden.

    the

    sufficiency

    of

    the

    See United States v. Beidler,

    110 F.3d 1064, 1067 (4th Cir. 1997).

    [A]n appellate courts

    reversal of a conviction on grounds of insufficient evidence


    should be confined to cases where the prosecutions failure is
    clear.

    United States v. Jones, 735 F.2d 785, 791 (4th Cir.

    1984).

    In reviewing a sufficiency challenge, [t]he verdict of

    must

    jury

    be

    sustained

    if

    there

    is

    substantial

    evidence,

    taking the view most favorable to the Government, to support


    it.

    Glasser v. United States, 315 U.S. 60, 80 (1942).

    This

    court ha[s] defined substantial evidence, in the context of a


    criminal action, as that evidence which a reasonable finder of
    fact

    could

    accept

    as

    adequate

    and

    sufficient

    to

    support

    conclusion of a defendants guilt beyond a reasonable doubt.


    United States v. Newsome, 322 F.3d 328, 333 (4th Cir. 2003).
    Where

    the

    evidence

    supports

    differing

    reasonable

    interpretations, the jury will decide which interpretation to


    believe.
    1997).

    United States v. Wilson, 118 F.3d 228, 234 (4th Cir.


    Furthermore, [t]he Supreme Court has admonished that we

    not examine evidence in a piecemeal fashion, but consider it in


    cumulative context.
    (4th Cir. 1996).

    United States v. Burgos, 94 F.3d 849, 863

    The focus of appellate review, therefore, of

    the sufficiency of evidence to support a conviction is on the


    complete

    picture,

    viewed

    in

    context
    3

    and

    in

    the

    light

    most

    favorable

    to

    portrayed.

    the

    Government,

    that

    all

    of

    the

    evidence

    Id.

    Johnsons assertion that Melvin was a mere facilitator


    and, thus, could not be a conspirator is without merit.

    This

    court held in Burgos that a variety of conduct, apart from


    selling narcotics, can constitute participation in a conspiracy
    sufficient to sustain a conviction, such as supplying firearms,
    purchasing

    money

    orders

    for

    co-conspirators,

    or

    allowing

    co-conspirators to store narcotics or other contraband in one's


    home.

    Burgos, 94 F.3d at 859.

    We conclude that facilitating

    the sale of drugs falls into the above category.

    Even if Melvin

    never intended to possess the drugs or distribute drugs himself,


    the evidence showed that he conspired with Cleve for Cleve to
    possess and distribute cocaine.
    Moreover, the evidence could suggest that Melvin was
    more than a mere facilitator.
    methamphetamine

    fronting

    Melvin and Cleve had an ongoing

    relationship

    whereby

    methamphetamine and paid Cleve with the proceeds.


    Melvin was Cleves go-between.
    this

    case

    negotiated

    the

    Melvin

    sold

    In addition,

    The Government informant in

    planned

    purchase

    of

    pound

    of

    methamphetamine with Melvin, not Cleve, as the informant was not


    able to talk to Cleve directly.

    In addition, Melvin was to be

    paid for the pound deal that he set up, so he had a vested
    interest in completing the deal and assisting Cleve in obtaining
    4

    methamphetamine for distribution.


    find

    that

    the

    evidence

    was

    Based on the foregoing, we

    sufficient

    to

    support

    Cleves

    conspiracy conviction.

    II.
    Johnson

    next

    asserts

    that

    the

    evidence

    was

    insufficient to support his conviction for attempting to possess


    with intent to distribute methamphetamine because (1) both the
    methamphetamine and the seller were imaginary (set up by the
    Government) and (2) any agreement was dependent on Johnsons
    inspection of the methamphetamine which did not (and could not)
    happen.
    An attempt to commit a crime, which is recognized as
    a

    crime

    distinct

    from

    the

    crime

    intended

    by

    the

    attempt,

    punishes conduct that puts in motion events that would, from the
    defendants point of view, result in the commission of a crime
    but for some intervening circumstance.

    United States v. Pratt,

    351

    In

    F.3d

    131,

    135

    (4th

    Cir.

    2003).

    order

    to

    prove

    attempt, the Government must establish that:


    (1) the defendant had the requisite intent to commit a
    crime; (2) the defendant undertook a direct act in a
    course of conduct planned to culminate in his
    commission of the crime; (3) the act was substantial,
    in
    that
    it
    was
    strongly
    corroborative
    of
    the
    defendants criminal purpose; and (4) the act fell
    short of the commission of the intended crime due to
    intervening circumstances.

    an

    Id.
    Mere
    attempt.
    1992).

    preparation

    is

    insufficient

    to

    establish

    an

    United States v. Sutton, 961 F.2d 476, 478 (4th Cir.


    However, the defendant need not commit the last act

    necessary before the actual commission of the substantive crime


    to

    be

    guilty

    engaged

    in

    of

    an

    attempt.

    substantial

    factual question.

    Whether

    Id.

    act

    beyond

    mere

    Pratt, 351 F.3d at 136.

    defendant

    preparation

    has

    is

    Facts that strongly

    corroborate a defendants criminal purpose and may constitute a


    substantial
    include:

    step

    (1)

    toward

    lying

    in

    commission

    wait,

    of

    searching

    the

    substantive

    for,

    or

    crime

    following

    the

    contemplated victim; (2) reconnoitering the place contemplated


    for the commission of the crime; (3) possession of materials to
    be employed in the commission of a crime; and (4) possession or
    fabrication of materials to be used in the commission of the
    crime, at or near the place contemplated for its commission.
    Id. at 135.

    Factual impossibility is not a defense to a charge

    of attempt.

    See United States v. Partida, 385 F.3d 546, 560

    (5th Cir. 2004).


    The evidence presented at trial, viewed in the light
    most favorable to the Government, establishes that Johnson was
    guilty

    of

    attempt.

    Johnson

    negotiated

    set

    price

    for

    the

    methamphetamine, through Melvin and the informant, and indicated


    his intent to purchase the drugs, both before the intended buy
    6

    and after.

    He procured the cash and went with Melvin to the

    informants

    residence

    agent).

    to

    contact

    the

    supplier

    (a

    Government

    The meeting was arranged, and Johnson drove to the

    appointed place with cash in hand.

    Before he could make it to

    his destination, Government agents stopped him and seized the


    money.

    This

    evidence

    attempt conviction.
    1312

    (9th

    defendant

    Cir.
    called

    was

    sufficient

    to

    support

    Johnsons

    See United States v. Scott, 767 F.2d 1308,

    1985)
    seller

    (upholding

    attempt

    expressing

    conviction

    interest

    in

    where

    purchasing

    cocaine and brought money to agreed upon place of sale); United


    States v. Williams, 704 F.2d 315, 321 (6th Cir. 1983) (affirming
    conviction

    where

    defendant

    inquired

    into

    possibility

    of

    purchasing cocaine and arrived at sellers house with funds). 2

    Johnson cites United States v. Joyce, 693 F.2d 838 (8th


    Cir. 1982), in support of his contention that his actions did
    not constitute a substantial step.
    In Joyce, the defendant
    traveled from Oklahoma to Missouri for the purpose of obtaining
    cocaine. When he met with the dealers Government agents
    involved in a reverse sting operation he asked to see the
    cocaine. After some discussion regarding prices, the Government
    officers retrieved the cocaine from another location and handed
    to it Joyce in a plastic package wrapped with duct-tape. Joyce
    asked the agents to open the package so that he could examine
    the cocaine.
    The officers refused to open the package until
    Joyce showed them the cash he intended to use to purchase the
    drug. After a heated discussion, Joyce stated that he would not
    deal with the agents, and he left. He was then arrested. Id.
    at 840.
    The Eighth Circuit found these facts insufficient to
    demonstrate a substantial step towards the completion of the
    offense,
    reasoning
    that
    Joyce,
    despite
    having
    both
    the
    (Continued)
    7

    III.
    Johnson next asserts that the district court erred in
    failing to remove a sleeping juror.

    Because this issue was not

    raised in district court, we review for plain error.


    R. Crim. P. 52(b).

    See Fed.

    In United States v. Freitag, 230 F.3d 1019

    (7th Cir. 2000), the Seventh Circuit discussed the standard for
    addressing the issue of sleeping or dozing jurors:
    If sleep by a juror makes it impossible for that juror
    to perform his or her duties or would otherwise deny
    the defendant a fair trial, the sleeping juror should
    be removed from the jury. See United States v.
    Kimberlin, 805 F.2d 210, 244 (7th Cir. 1986); United
    States v. Bradley, 173 F.3d 225, 230 (3d Cir. 1999);
    United States v. Springfield, 829 F.2d 860, 864 (9th
    Cir. 1987). However, a court is not invariably
    required to remove sleeping jurors, Springfield, 829
    F.2d at 864, and a court has considerable discretion
    in deciding how to handle a sleeping juror, United
    States v. Wilcox, 50 F.3d 600, 603 (8th Cir. 1995).
    Reversal is appropriate only if the defendant was

    opportunity and ability to purchase the drugs, unambiguously


    A later Eighth Circuit
    refused to do so.
    See id. at 841-42.
    case explains that part of the rationale underlying this opinion
    was the fact that Joyce, rather than the Government agents,
    terminated the events leading up to the sale.
    See United
    States v. Burks, 135 F.3d 582, 584 (8th Cir. 1998).
    Applying
    this rationale to Johnsons case, we conclude that it is
    distinguishable from Joyce.
    While Johnson did state that he
    wanted to examine the drugs prior to purchase, it was the
    officers who interrupted the proceedings by stopping Johnson and
    seizing his money.
    Rather than terminating the transaction,
    Johnson was driving to the location of the deal with the
    agreed-upon funds when police stopped his car.
    Further, after
    the deal was aborted, Johnson continued to deal with the
    informant and the Government agent in an attempt to purchase
    methamphetamine.

    deprived of his Fifth Amendment due process rights or


    his Sixth Amendment right to an impartial jury.
    Springfield, 829 F.2d at 864.
    Freitag, 230 F.3d at 1023.
    Here,
    sleeping.

    there

    is

    no

    evidence

    that

    the

    juror

    was

    At worst, the record reflects that the juror was

    tired and perhaps inattentive for an undefined period of time


    during the Defenses opening argument and the informants direct
    testimony.

    In addition, once the court noticed the juror, the

    court took a momentary break and instructed the jury on the


    importance of being alert.

    Absent any evidence that the juror

    was unable to consider the case fairly, Johnson has failed to


    show error, much less plain error.

    IV.
    Finally, Johnson claims that methamphetamine offenses
    are treated more harshly than powder cocaine offenses, resulting
    in

    violation

    of

    the

    Equal

    Protection

    Clause

    because

    methamphetamine offenses are more often than not committed by


    Caucasians.

    Because Johnson did not raise an objection on this

    basis below, his claim is reviewed for plain error.


    presents
    conclusion

    no

    evidence

    that

    (1)

    or

    legal

    Caucasians

    authority
    are

    As Johnson

    supporting

    unequally

    impacted

    the
    by

    methamphetamine sentencing statutes or (2) that any inequality

    is not justified based on variables specific to methamphetamine


    offenses, he has failed to show error, much less plain error.
    Accordingly,
    sentence.
    legal
    before

    affirm

    Johnsons

    convictions

    and

    We dispense with oral argument because the facts and

    contentions
    the

    we

    court

    are

    adequately

    and

    argument

    presented

    would

    not

    in
    aid

    the
    the

    materials
    decisional

    process.
    AFFIRMED

    10

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