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U.S. v. Powell

May 12, 1997

UNITED STATES OF AMERICA

v.

JAMES POWELL,

APPELLANT AT NO. 96-7242

ANTONIO POWELL,

APPELLANT AT NO. 96-7274



On Appeal from the United States District Court for the Middle District of Pennsylvania

(D.C. Criminal Nos. 95-cr-00055-1 and 95-cr-00055-2)

Before: BECKER, SCIRICA and ALITO, Circuit Judges

SCIRICA, Circuit Judge.

Filed May 12, 1997

Submitted Pursuant to Third Circuit LAR 34.1(a) March 10, 1997

OPINION OF THE COURT

Antonio and James Powell were indicted on federal charges for distributing cocaine and conspiracy. Antonio Powell pleaded guilty and now appeals his sentence. His brother James Powell was convicted by a jury and appeals his conviction for insufficiency of evidence. We will affirm.

I.

In March and April of 1994, detectives of the Kingston, Pennsylvania, Police Department investigated the drug trafficking of James and Antonio Powell. During the course of the investigation, the detectives made six controlled purchases of cocaine base from Antonio Powell. On each drug delivery, James Powell accompanied his brother and occasionally acted as look-out. The brothers also made incriminating statements in a series of tape-recorded telephone conversations.

A federal grand jury indicted Antonio and James Powell on conspiracy and drug distribution charges. Antonio Powell pleaded guilty to one count of conspiring to distribute and possess with intent to distribute cocaine and cocaine base in violation of 21 U.S.C. Section(s) 846, *fn1 two counts of aiding and abetting distribution of cocaine in violation of 21 U.S.C. Section(s) 841(a)(1), three counts of aiding and abetting distribution of cocaine base in violation of 21 U.S.C. Section(s) 841(a)(1), and one count of distributing cocaine base in violation of 21 U.S.C. Section(s) 841(a)(1). *fn2 James Powell pleaded not guilty and elected to represent himself at trial. *fn3 A jury convicted James Powell on each count to which his brother pled guilty. James Powell was sentenced to one hundred and fifty months imprisonment. Antonio Powell was sentenced to eighty-seven months imprisonment.

James Powell appeals the sufficiency of evidence supporting his conviction. *fn4 Antonio Powell appeals his sentence, specifically an increase in his offense level for obstruction of justice and reliance on an allegedly incorrect laboratory report.

II.

The district court had jurisdiction under 18 U.S.C. Section(s) 3231. We have jurisdiction under 28 U.S.C. Section(s) 1291. If a defendant fails to file a timely motion for judgment of acquittal, we review sufficiency of evidence for plain error. United States v. Gaydos, 108 F.3d 505, 509 (3d Cir. 1997). We review adjustments under U.S.S.G. Section(s) 3C1.1 under a two-part standard. We review a district court's factual determination of willful obstruction of justice for clear error, and its legal interpretation and application of the sentencing guidelines under ...


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