UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-4063

DAVID RANDALL MOTSINGER,

Defendant-Appellant.

Appeal from the United States District Court

for the Middle District of North Carolina, at Greensboro.

N. Carlton Tilley, Jr., District Judge.

(CR-95-113)

Submitted: January 31, 1997

Decided: February 12, 1997

Before HALL and MURNAGHAN, Circuit Judges, and

PHILLIPS, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Paul M. James, STOWERS & JAMES, P.A., Winston-Salem, North

Carolina, for Appellant. Walter C. Holton, Jr., United States Attorney,

Scott P. Mebane, Assistant United States Attorney, Greensboro, North

Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

David Randall Motsinger appeals from his conviction and sentence

for conspiracy to possess with the intent to distribute marijuana in

violation of 21 U.S.C. § 846(a)(1) (1994). We affirm.

Motsinger's attorney has filed a brief in accordance with Anders v.

California, 386 U.S. 738 (1967), raising five potentially meritorious

issues:

(1) the district court abused its discretion in denying a

motion for severance;

(2) the district court abused its discretion in denying a

motion for additional peremptory challenges;

(3) Motsinger's Sixth Amendment right to counsel was

violated by introduction of statements made to a codefendant while they were confined in the same holding cell;

(4) the district court erroneously denied Motsinger's

motion for judgment of acquittal under Fed. R. Crim.

P. 29(c); and

(5) it was plain error for the district court to fail to

instruct the jury with regard to multiple versus single

conspiracies.

Motsinger himself raises an additional five issues:

(6) he received a sentence disproportionate in severity to

that of higher ranking individuals within the conspiracy;

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(7) three witnesses have different recollections of how

many air compressors were used to conceal an

alleged shipment of 460 pounds of marijuana;

(8) although the Government produced paperwork to

prove another shipment of marijuana, it failed to produce any paperwork establishing the existence of the

460 pound shipment;

(9) although the Government established the existence of

phone calls between various members of the conspiracy, it was unable to prove that Motsinger had called

anyone in the conspiracy other than the "avowed second in command;" and

(10) although the Government introduced taped conversations between the second in command and other conspirators, no tapes between this individual and

Motsinger were introduced.

With regard to claims (1) and (2), we find no abuse of discretion.

Addressing claim (3), we note that the district court conducted a hearing whereupon it found that the co-conspirator was not acting on

behalf of the Government at the time he was in the holding cell with

Motsinger. We find no clear error in this factual determination, and

therefore, the admission of any statements which Motsinger volunteered or the co-conspirator elicited does not constitute a Sixth

Amendment violation. Maine v. Moulton, 474 U.S. 159, 176 (1985)

(stating that "the Sixth Amendment is not violated whenever"by luck

or happenstance"the [Government] obtains incriminating statements

from the accused after the right to counsel has attached").

Turning to claim (4), a denial of a motion for acquittal is reviewed

under a sufficiency of evidence standard. Fed. R. Crim. P. 29; United

States v. Brooks, 957 F.2d 1138, 1147 (4th Cir. 1992). To sustain a

conviction the evidence, when viewed in the light most favorable to

the government, must be sufficient for a rational jury to have found

the essential elements of the crime beyond a reasonable doubt. United

States v. Brewer, 1 F.3d 1430, 1437 (4th Cir. 1993); see Glasser v.

United States, 315 U.S. 60, 80 (1942). A review of the trial transcripts

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reveals ample evidence to support Motsinger's conviction under this

standard. Given this determination, we also find claims (7) through

(10), which amount to no more than a sufficiency of the evidence

challenge, to be meritless.

Addressing claim (5), Motsinger's attorney concedes that because

this issue is raised for the first time on appeal, it is reviewed for plain

error. United States v. Olano, 507 U.S. 725 (1993). Motsinger

explains that much of the evidence against him related to his participation in the theft of 287 pounds of marijuana from other members

of the conspiracy. He argues that this theft, committed with the help

of two other co-conspirators constituted a second, smaller and

uncharged conspiracy because its goals ran counter to that of the

overall conspiracy. From this premise, he argues that because much

of the evidence presented against him related to the theft, the remaining evidence was insufficient to convict him of the larger, charged

conspiracy and that the jury should have been instructed in single versus multiple conspiracies so that it would not consider evidence of the

theft in determining his guilt or innocence of the larger charged

offense. Even assuming Motsinger's newly raised theory of a second

conspiracy to be a convincing one, and factoring out all testimony

relating to the 287 pound theft, we find ample evidence to support

Motsinger's conviction for the larger conspiracy and therefore find

that even if the district court's failure to instruct the jury on multiple

versus single conspiracies was erroneous, it did not constitute plain

error as defined in Olano.

Finally, turning to claim (6), we note that any discrepancy between

Motsinger's sentence and that of his higher ranking co-conspirators

may possibly be explained by the fact these individuals either pled

guilty or testified for the Government at the trial of the remaining

conspirators. At any rate, sentencing courts are not required to consider the sentences of co-defendants. United States v. Foutz, 865 F.2d

617, 621 (4th Cir. 1989); see also United States v. Hayes, 589 F.2d

811, 827 (5th Cir. 1979) (stating that appellant"cannot rely upon the

sentences which other defendants receive as any yardstick for his sentence"). Accordingly, we find no error.

Pursuant to Anders, this court has reviewed the record for potential

error and has found none. Therefore, we affirm Motsinger's sentence

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and conviction. This court requires that counsel inform his client, in

writing, of his right to petition the Supreme Court of the United States

for further review. If the client requests that a petition be filed, but

counsel believes that such a petition would be frivolous, then counsel

may move this court for leave to withdraw from representation. Counsel's motion must state that a copy thereof was served on the client.

We deny counsel's pending motion to withdraw and 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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