* Pursuant to 5 TH C IR

. 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that this opinion should not be published and is not precedent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 5 TH C IR

.

R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

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.

-------------------- Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 1:00-CR-89

--------------------

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 unregistered2

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 cr ack 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 ch arged in Count 1. S ee

United States v. Dukes

, 145 F.3d 469, 475 (5th Cir. 1998); U nited

States v. Morris , 46 F.3d 410, 416 (5th Cir. 1995).

McN air’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. S ee 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 po ssession 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. S ee United States v.3

DeLeon , 170 F.3d 494, 496 (5th Cir. 1999). McNair has not show n

that the evidence was insufficient on any count.

McNair also argues that the district cour t erred under

Apprendi v. New Jersey

, 530 U.S. 466 (2000), in sentencing him to a

360-month sentence pursuant to his conviction for consp iring 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. S ee Apprendi

,

530 U.S. at 476.

AFFIRMED.