* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

1 The verdict form recording the jury’s conclusion articulated count 2 against Weathersby as “possess[ion] with the intentto distribute, or aid[ing] and abett[ing] the same . . . .” [Vol 2. at tab 159] T he only possible possession to which the aiding and abetting verdict could have re ferred was the possession by (continued...) 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAR 5 2004 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. KEITH V. WEATHERSBY,

Defendant - Appellant. No. 02-3322 (D.C. No. 98-CR-20076-03-JWL) (District of Kansas)

ORDER AND JUDGMENT *

Before MURPHY , ANDERSON , and McCONNELL , Circuit Judges.

I. INTRODUCTION Defendant Keith V. Weathersby was convicted by a ju ry of conspiracy to possess with intent to distribute cocaine and of po ssession with intent to distribute cocaine or aiding and abetting the possession with intent to distribute cocaine. 11 (...continued)

Theus and Battle. 2 [Appx. Vol. 2 at Tab 159] At the close of the gove rnment’s evidence, and again following trial, Weathersby moved for a judgment of acquittal arguing that the evidence against him was insufficient to support a conviction. [Vol. 9 at 570, Vol. 3 at tab 162] The court denied both motions. [Vol. 9 at 603, Vol. 3, tab 173 at 15] After the verdict was entered, Weathersby f iled a motion for a new trial. [Vol. 3, tab. 181] The district court denied that motion as well. [Vol. 3, tab 173 at 15] Weathersby was sentenced to 292 months’ imp risonment. [Vol. 3, tab 184 at 2] On appeal, Weathersby challenges the denial of his motions for a judgment of acquittal and motion for a new trial. [W’s Br. at 16-18] Weathersby also argues that the district court committed plain erro r by applying an upward adjustment to his base offense level for reckless e ndangerment. [W’s Br. at 20] This court exercises jurisdiction pursuant to 28 U. S.C. § 1291 andaffirms the district court’s decisions.
II. BACKGROUND Denise Theus and Marlane Battle were stopped by hig hway patrol troopers while driving in Kansas. [Vol. 8 at 190-91] The troopers discovered four kilograms of cocaine hidden inside the spare tire o f the car they drove. [Id. at3

194] The women told the officers that they were dr iving the car from Los Angeles to Kansas City for a friend but that they w ere unaware of the drugs hidden in the tire. [Id. at 228] The troopers con tacted the DEA, and DEA agents attempted a controlled delivery of the drugs in Kan sas City. [Id. at 198, 233] After the attempted delivery failed, the women were released. [Id. at 230] Law enforcement agents continued their investigation into the source of the drugs. Sometime later, after Theus had been arrested on ot her charges, she was indicted in connection with the four kilograms for possession with intent to distribute cocaine. [Vol. 1, tab 1; Vol 9 at 483-8 4] She agreed to cooperate with prosecutors and pleaded guilty. [Vol. 11 at 128] The government then obtained a superseding indictment against Theus, Battle, Weath ersby, and Gary Terrell. [Vol. 1, tab 26] The indictment charged that the f our defendants conspired to distribute cocaine in Kansas between November 1996 and January 1997. [Id.] Battle and Terrell were arrested and eventually ple aded guilty to possession with the intent to distribute cocaine. [App. Vol. 1 at tab 62, 65] Weathersby eluded capture for some time after his c o-conspirators had been apprehended. On July 6, 2001, law enforcement offi cers followed Weathersby to a freeway entrance ramp in Los Angeles. [Transcrip t of 9/6 at 9-10, 16] When Weathersby stopped at a traffic light, one officer maneuvered his vehicle to block Weathersby from driving onto the freeway. [Id. at 17] Weathersby then rammed4

the officer’s car and escaped by driving up an embankment onto the freeway. [Id. at 18-19] Weathersby was apprehended about a monthlater. [Id. at 24-25] By the time Weathersby was caught, Terrell, Theus, and Battle had agreed to assist in his prosecution. [Vol. 5 at 4-5, Vols 13, 16] At trial, Terrell testified that he and Weathersby had been close friends and that they had both sold cocaine in Los Angeles. [V ol. 11 at 11] Terrell stated that, in the past, he and Weathersby had sometimes pooled their money in order to purchase bulk quantities of cocaine. [Id.] Terrel l also testified that he and Theus were partners in the business of selling cocaine, w hich they often purchased from Weathersby. [Id. at 29-30, 132] Although Terrell and Theus purchased the cocaine in Los Angeles, they usually sold it in Kan sas City, Kansas and Kansas City, Missouri. [Id. at 123, 135]. Terrell testif ied that Weathersby provided the four kilograms of cocaine seized by Kansas Highway Patrol when Theus and Battle were pulled over. [Vol. 11 at 33-34] Terrell also testified that Weathersby assisted himin obtaining the automobile used by Theus and Battle to transport th e cocaine. Weathersby suggested that Terrell contact a certain salesman a nd accompanied Terrell when he went to lease the vehicle. [Vol. 11 at 17-18] Theus testified that Weathersby regularly supplied her with cocaine and had completed a two-and-a-half kilogram deal with her s hortly before the four5

kilogram purchase. [Id. at 132-33, 136] Theus als o testified that Weathersby had supplied the four kilograms discovered in the spare tire. [Id. at 141-43] Battle’s testimony supported the evidence given by Theus andTerrell. She testified that Weathersby told her that he made “a lot of money” f rom the cocaine market in Kansas City and that he dealt with Theus in distrib uting cocaine there. [Id. at 110]. Battle stated that she was present on one oc casion when Theus purchased cocaine from Weathersby. [Id. at 107-09] At the close of the prosecution’s evidence, Weather sby moved for a judgment of acquittal, arguing that there was insuf ficient evidence to show that he had any agreement with his co-conspirators to distr ibute cocaine in Kansas. [Vol. 9 at 570-71] The district court denied the motion. [Id. at 603] After the jury found him guilty, Weathersby renewed the motion, an d the court again denied it. [Vol. 3 at tab. 173] Before sentencing, Weathersby filed a motion seekin g a new trial based on information given by Johnny Frazier, a fellow inmat e. [Vol. 3, tab 181] In an interview with Weathersby’s counsel, Frazier statedthat Terrell had told him the four kilograms of cocaine had been supplied by some one other than Weathersby. [Id. at 3] Frazier reported that Terrell had plann ed to falsely accuse Weathersby so that his sentenced would be reduced. The distri ct court denied the motion, holding that a new trial could not be granted on th e basis of impeachment6

evidence and that in the alternative a new trial wa s unlikely to produce an acquittal. [Vol. 7 at 24, 26] At sentencing, the district court adjusted Weathers by’s base offense level upward by two levels for reckless endangerment duri ng flight pursuant to U.S.S.G. § 3C1.2. [Vol. 18 at 27-28] The court ba sed the adjustment on Weathersby’s escape from law enforcement officers o n July 6, 2001. [Id.] Weathersby appeals the district court’s sentencing decision as well as the district court’s rulings on his motions for a judgment of ac quittal and for a new trial.
III. DISCUSSION A. The Motions for a Judgment of Acquittal Whether the evidence is sufficient to support the j udgment is reviewed de

novo. United States v. McKissick, 204 F.3d 1282, 1289 (10th Cir. 2000). The question is whether the evidence, when viewed in th e light most favorable to the government, would permit a reasonable jury to find guilt beyond a reasonable doubt. Id. 1. The Conspiracy Charge A conviction for conspiracy requires the governmentto show: (1) two or more persons including the defendant, agreed to vio late the law, (2) the defendant knew the essential objective of the conspiracy; (3) the defendant knowingly and voluntarily became part of the conspiracy; and (4) the alleged co-conspirators7

were interdependent. United States v. Ivy , 83 F.3d 1266, 1285 (10th Cir. 1996). Weathersby argues that there was insufficient evide nce of an agreement between him and his co-conspirators to sustain a convictionfor conspiracy to distribute cocaine. [W’s br. at 25-26] Weathersby asserts th at, at best, the evidence showed only a buyer-seller relationship. [Id. at 28-29] This circuit has held that proof of the existence of a buyer-seller relationship, witho ut more, is inadequate to tie the buyer to a larger conspiracy. See United States v. Flores , 149 F.3d 1272, 1277 (10th Cir. 1998). As we noted in Ivy , however, “the purpose of the buyer-seller rule is to separate consumers, who do not plan to r edistribute drugs for profit, from street-level, mid-level, and other distributor s, who do intend to redistribute drugs for profit, thereby furthering the objective of the conspiracy.” Ivy, 83 F.3d at 1285-86. The testimony of Terrell, Theus, and B attle clearly showed that Weathersby was not a buyer, but rather a distributo r who sold relatively large quantities of narcotics for redistribution. Likewi se, Terrell and Theus acknowledged that they were not mere consumers, butpurchased cocaine in order to sell it to others. Weathersby asserts, however, that in this specific transaction he lacked a “shared stake in the buyer’s illegal venture.” The refore, according to Weathersby, the sale of the four kilograms could no t have been part of a larger conspiracy. United States v. Rivera , 273 F.3d 751, 755 (7th Cir. 2001)(quotation2 Weathersby argues that this court should use the f our-factor test developed in United States v. Rivera to determine whether a buyer and a seller were involved in a conspiracy. [W’s Br. at 25] Th is test examines: (1) the length of the relationship between the buyer and se ller, (2) whether there was an established method of payment such as fronting, (3) the extent to which the transactions were standardized, and (4) the level o f mutual trust between the buyer and the seller. United States v. Rivera , 273 F.3d 751, 755 (7th Cir. 2001). We decline to do so. Because United States v. Ivy , 83 F.3d 1266 (10th Cir. 1996) is controlling in this case it is unnecessary for this court to utilize Rivera

. 8 omitted). 2 [W’s Br. at 25] Weathersby notes that fronting the narcotics in expectation of payment is important evidence of a c onspiracy to distribute and is noticeably absent in this case. [W’s Br. at 26] W eathersby points out that Terrell also testified that he and Weathersby were not part ners, had no agreement regarding distribution of the drugs, and that once the money changed hands Weathersby had no stake in the outcome of Terrell’s and Theus’s activity. [Vol. 11. at 12, 74-75] Even assuming that if Weathersby lacked a “shared s take in the buyer’s illegal venture” the buyer-seller rule would apply, that is not the situation in this case. While the defendant’s partial summary of Ter rell’s testimony is accurate, it ignores other evidence in the case showing that Weathersby had a continuing interest in the disposition of the drugs at issue i n this case. Weathersby told Battle that he made a great deal of money from the Kansas cocaine market and knew that Theus had contacts there. [Id. at 110] Battle also noted that Weathersby stated that he worked with Theus to distribute cocaine in Kansas City.9

[Id.] As noted, Weathersby also assisted in obtain ing a transport vehicle from a dealership in Kansas City, Missouri. Although much of this evidence relates to drug tran sactions not encompassed in the indictment in this case, the evi dence of the course of conduct is highly relevant to determining the nature of Weathersby’s relationship with his co-conspirators. Essentially, Theus and Terrell op erated as retailers for Weathersby and he knew that if business was “boomin g in Kansas” he would continue to make money. [Vol. 11 at 110] Based on the evidence described above, the jury could reasonably infer that Weather sby’s interest in the conspiracy went beyond the simple act of selling the four kilo grams to Theus and Terrell. Thus, the buyer-seller rule simply does not apply i n this case. There is also sufficient evidence of the factors li sted in Ivy . From the evidence described above, the jury could readily in fer that Weathersby knew the intentions of Terrell and Theus and agreed to assis t them. Likewise, the evidence of the course of conduct between the parties supports the conclusion that the parties were interdependent and that Weathersby participated willingly. The jury could have inferred that Theus and Terrell relied o n Weathersby to provide drugs and transportation, and that Weathersby relied on T heus and Terrell as return buyers to pay him for the drugs and distribute them . Accordingly, we conclude that there is sufficient evidence to sustain the ju ry’s verdict concerning the3 See footnote 1. 10

conspiracy to distribute cocaine. 2. The Possession Charge The jury convicted Weathersby of either possessing cocaine with the intent to distribute or aiding and abetting possession by his co-conspirators. 3 [Vol 2 at Tab 159] Weathersby argues that there is insuffici ent evidence to support a conviction regarding the aiding and abetting for th e same reasons that the evidence does not support a conviction for conspira cy. [W’s Reply Br. at 10] For reasons discussed above we reject that argument andconclude there was sufficient evidence to support the jury’s verdict. Weathersby also argues that he did not possess the cocaine because he had no “abil ity to guide the destination of the [drug].” United States v. Carter , 130 F.3d 1432, 1441 (10th Cir. 1997). We reject that argument as well because constructive p ossession may be joint among several individuals involved in a conspiracy. United States v. Ruiz-Castro , 92 F.3d 1519, 1531 (10th Cir. 1996). Accordingly, we conclude that the evidence was sufficient to sustain the aiding and abetting c onviction.
B. The Motion for a New Trial The denial of a motion for a new trial based on new ly discovered evidence is reviewed for an abuse of discretion. United States v. Sutton , 767 F.2d 726, 728 (10th Cir. 1985). To prevail on such a motion, the defendant must show that: (1)4 The district court held that Frazier’s testimony w as “merely impeaching”

evidence and could not be the basis for a new trial . [Vol 7 at 24] Weathersby argues that the evidence presented by Frazier goes to a central issue in the case and therefore it is not “merely impeaching.” [W’s Br. at 36-38] We need not reach that question, however, because we agree withthe district court’s alternative holding [Vol. 7 at 28] that even if a n ew trial was warranted it would be unlikely to produce a different result. 11 the evidence was discovered after trial; (2) the fa ilure to learn of the evidence was not caused by defendant’s own lack of diligence ; (3) the new evidence is not merely impeaching; (4) the new evidence is material to the principal issues involved; and (5) the new evidence is of such a nat ure that in a new trial it would probably produce an acquittal. United States v. Sinclair , 109 F.3d 1527, 1531 (10th Cir. 1997). Weathersby argues that Frazier’s testimony contradi cted the government’s only evidence that Weathersby supplied the four kil ograms of cocaine seized in this case. 4 [W’s reply br. at 11] Weathersby argues that the district court erred in concluding that Terrell’s testimony remained credib le despite the information offered by Frazier. [W’s br. at 38] Weathersby no tes that the court felt Terrell had little incentive to lie because he had already received a substantial reduction in his sentence. [Id.] He argues that the court s hould have recognized that without directly implicating Weathersby, Terrell ha d little information to offer prosecutors. [Id.] That argument fails because Terrell’s credibility w as already in question12

before the discovery of Frazier’s information. Terrell testified about his criminal history, [Vol. 11 at 6-7] about lies he had told in the past, [Id. at 48, 59, 61, 65- 66] and about his motivations for testifying agains t Weathersby. [Id. at 3-6, 10- 11] The information offered by Frazier would have added very little. The jury was already aware that Terrell had a grudge againstWeathersby and had been given a reduced sentence for his testimony. Moreov er, the jury was aware Terrell purchased cocaine both from Weathersby and others. [Id. at 30] Frazier would have added only that Terrell had stated his intenti on to falsely accuse Weathersby. We note that Frazier himself would have been subjec t to significant impeachment. Frazier was incarcerated for money la undering at the time he gave the information and he admitted that there was a co nflict between him and Terrell. [Vol. 3, Tab 181 at 2-3] Given Terrell’s admission s at trial concerning numerous instances of perjury, his criminal history, and his acknowledgment of a grudge against Weathersby, nothing indicates that Frazier’ s testimony would have changed the outcome. Accordingly, we conclude thatthe district court did not abuse its discretion by denying the motion for a ne w trial. C. The Sentencing Adjustment for Reckless Endangerme nt On appeal, Weathersby argues that there must be a c onnection between the defendant’s flight which causes reckless endangerme nt and the offense of conviction. [W’s br. at 40] Weathersby did not ra ise this issue before the district13

court. [Id. at 41] Therefore, we review the distr ict court’s decision for plain

error. United States v. Brown , 316 F.3d 1151, 1155 (10th Cir. 2003). Under the plain error standard, Weathersby must show an error , that is plain and that affects his substantial rights. Id. If these conditions are met, the court may exerc ise its discretion to notice the forfeited error, but only if the error seriously affects the fairness, integrity, or public reputation of judici al proceedings. Id

. Under U.S.S.G. § 3C1.2, an upward adjustment of two levels should apply “[i]f the defendant recklessly created a substantia l risk of death or serious bodily injury to another person in the course of fleeing f rom a law enforcement officer.” Weathersby argues that sentencing adjustments to th e base offense level are made based on relevant conduct and the guidelines defini tion of relevant conduct looks to events occurring “in the course of attempting to avoid detection or responsibility for” the offense of conviction. U.S .S.G. § 1B1.3(a)(1). [W’s Br. at 42] This circuit has not decided whether a nexus betwee n the flight and the offense of conviction is required by the Sentencing Guidelines. We will assume solely for the sake of argument that the district c ourt erred by not examining the connection, but we conclude that any error was not plain. Generally, we do not consider an error to be “plain” in the absence of c ontrolling precedent. United States v. Haney , 318 F.3d 1161, 1167 (10th Cir. 2003) (en banc). There is no14

Supreme Court or binding Tenth Circuit decision on the issue of whether section 3C1.2 requires a connection to the offense of convi ction. Weathersby argues that binding precedent is unneces sary because the clear language of the sentencing guidelines requires a ne xus. [W’s reply br. at 17] We disagree. Nothing in section 3C1.2 itself requires that there be a connection between the offense of conviction and the flight in cident. While it is true that section 1B1.3 would suggest that a nexus is needed, it does not unequivocally state a requirement. That section allows for consi deration of “any other information specified in the applicable guideline.” U.S.S.G. § 1B1.3(a)(4). In this case, the applicable guideline can be read to call for consideration of reckless endangerment caused during any attempt to escape. Our conclusion that the language of the Guidelines does not immediately resolve the issue is reinforced by examining relevant case law. No circuit has held that a nexus is required, although some have a ssumed a nexus is required. See, e.g., United States v. Duran , 37 F.3d 557, 559-60 (9th Cir. 1994). On the other hand, an unpublished Tenth Circuit case has r ejected the notion that any nexus is required. See United States v. Green, 2001 WL 50754 at *2-*3 (10th Cir. Aug. 18, 1999). While these decisions are notbinding, they certainly indicate that a substantial question exists as to w hether a nexus to the offense of conviction is required by section 3C1.2. According ly, we cannot conclude that15

the district court’s decision to apply the adjustme nt was plain error.
IV. CONCLUSION For the foregoing reasons, this court affirms the district court’s denial of the motion for a judgment of acquittal, affirms the denial of the motion for a new
trial and affirms Weathersby’s sentence.
ENTERED FOR THE COURT

Michael R. Murphy Circuit Judge