United States v. McNair

* 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that this opinion should not be published and is not precedent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.
United States Court of Appeals
Fifth Circuit
F I L E D
November 6, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-60086
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RONNIE MCNAIR, also known as Mole,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 1:00-CR-89
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Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.
PER CURIAM:*
Ronnie McNair appeals his convictions for a cocaine
conspiracy (Count 1), distribution of cocaine base with intent to
distribute (Counts 2-4 & 6), distribution of cocaine base within
1000 feet of a housing project (Count 5), possession of cocaine
base with intent to distribute (Count 7), being a felon in
possession of a firearm (Count 8), and possession of unregistered

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short-barreled shotguns (Count 9). McNair asserts that the
evidence was insufficient on all nine counts.
McNair has waived arguments as to the sufficiency of the
evidence on Count 2 and Count 7 by failing to properly brief them.
See United States v. Beaumont, 972 F.2d 553, 563 (5th Cir. 1992).
In view of evidence of McNair’s purchases of cocaine from
suppliers, his attempts to teach his son how to “cook” crack
cocaine, and his arrangement with a Government witness to front
“cookies” of crack cocaine, which were then split up and sold to
others, McNair has not shown that the evidence was insufficient to
convict him of conspiring to possess with intent to distribute in
excess of 50 grams of cocaine base, as charged in Count 1. See
United States v. Dukes, 145 F.3d 469, 475 (5th Cir. 1998); United
States v. Morris, 46 F.3d 410, 416 (5th Cir. 1995).
McNair’s arguments as to Counts 3-6 amount to nothing
more than an assault on the credibility of the Government’s
cooperating witness. It is not this court’s task to determine the
credibility of witnesses. See United States v. Ybarra, 70 F.3d
362, 364 (5th Cir. 1995); United States v. Puma, 937 F.2d 151, 155
(5th Cir. 1991).
With respect to Counts 8 and 9, McNair contends that the
evidence was insufficient to establish his possession of the
firearms specified in the indictment. Because McNair has failed to
show that the evidence was insufficient to establish his
constructive possession, his challenge fails. See United States v.

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DeLeon, 170 F.3d 494, 496 (5th Cir. 1999). McNair has not shown
that the evidence was insufficient on any count.
McNair also argues that the district court erred under
Apprendi v. New Jersey, 530 U.S. 466 (2000), in sentencing him to a
360-month sentence pursuant to his conviction for conspiring to
possess with intent to distribute in excess of 50 grams of cocaine
base. McNair acknowledges that this argument was not raised below
and that this court’s review is therefore limited to plain error.
See United States v. Olano, 507 U.S. 725, 733 (1993). Because the
drug quantity for the conspiracy count was charged in the
indictment there is no error, plain or otherwise. See Apprendi,
530 U.S. at 476.
AFFIRMED.

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