UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

No. 95-5766

BANDELE M. JONES, a/k/a Dele, a/k/a

Bandele D. Jones, a/k/a Bandele

Monchun Jones,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of West Virginia, at Charleston.

Charles H. Haden II, Chief District Judge.

(CR-95-51)

Submitted: January 28, 1997

Decided: February 10, 1997

Before MURNAGHAN and HAMILTON, Circuit Judges,

and PHILLIPS, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Barbara H. Allen, James A. McKowen, ALLEN & ALLEN, L.C.,

Charleston, West Virginia, for Appellant. Rebecca A. Betts, United

States Attorney, Monica K. Schwartz, Assistant United States Attorney, Charleston, West Virginia, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Bandele Jones appeals his conviction, after a jury trial, of conspiracy to distribute and possess with intent to distribute cocaine base, 21

U.S.C. § 846 (1994) (count 1); aiding and abetting possession with

intent to distribute cocaine and cocaine base, 21 U.S.C. § 841(a)(1)

(1994) (count 3); aiding and abetting travel in interstate commerce to

facilitate unlawful drug activity, 18 U.S.C. § 1952(a)(3) (1994) (count

4); and possession with intent to distribute cocaine base, 21 U.S.C.

§ 841(a)(1) (1994) (count 5). He was sentenced to 360 months in

prison and five years supervised release. Finding no error, we affirm.

Jones first claims that this court should revisit its prior decisions

holding that the disparity in sentencing between cocaine base and

powder cocaine offenses is constitutionally permissible. United States

v. Fisher, 58 F.3d 96, 98-100 (4th Cir.), cert. denied, ___ U.S. ___,

64 U.S.L.W. 3720 (U.S. Oct. 10, 1995) (No. 95-5923); United States

v. Byrnum, 3 F.3d 769, 774-75 (4th Cir. 1993); United States v.

Thomas, 900 F.2d 37, 38-40 (4th Cir. 1990). Jones relies on the recommendation of the United States Sentencing Commission that the

disparity be eliminated, as well as a statement of President Clinton

that "[s]ome adjustment is warranted." However, Congress did not

adopt the Sentencing Commission's recommendation to eliminate or

reduce the disparity. See United States v. Hayden, 85 F.3d 153, 157-

58 (4th Cir. 1996). Therefore, this Court's precedent need not be

revisited, and the disparity presents no ground for overturning Jones's

sentence.

Jones next contends that his sentence of 360 months is disproportionate to the sentences of his codefendants, who were sentenced to

eighty-four months (Angelo White) and thirty-six months (Frank

Fazio). The sentencing court need not consider the sentence of a codefendant when imposing sentence. United States v. Foutz, 865 F.2d

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617 (4th Cir. 1989); United States v. Truelove , 482 F.2d 1361 (4th

Cir. 1973). Further, even comparing the sentences of Jones and his

codefendants, the differences in the sentences at issue are clearly supported by the record: Jones went to trial, whereas White and Fazio

pled guilty and offered substantial assistance to the Government. Further, Jones was more culpable in the conspiracy than were White and

Fazio. Finally, to the extent that Jones challenges the district court's

refusal to depart downward based on his codefendants' sentences, disparity of sentences among codefendants is not a ground for downward

departure absent prosecutorial misconduct, which is not alleged here.

United States v. Fonville, 5 F.3d 781 (4th Cir. 1993). See also United

States v. Bayerle, 898 F.2d 28 (4th Cir. 1990) (district court's refusal

to depart downward is not appealable). Therefore, the district court

did not err in imposing Jones's sentence.

Jones next contends that improper statements made by the prosecutor warranted a mistrial. This court reviews the denial of a motion for

mistrial for abuse of discretion. Hayden, 83 F.3d at 156. To show an

abuse of discretion, the appellant must show prejudice. Id. In assessing improper prosecutorial comments, the court looks to: (1) the

degree to which the comments misled the jury and prejudiced the

defendant; (2) whether the remarks were isolated or extensive;

(3) whether absent the remarks, the evidence established the defendant's guilt; and (4) whether the comments were deliberately made to

divert the jury's attention to extraneous matters. United States v.

Harrison, 716 F.2d 1050 (4th Cir. 1983).

Jones alleges that during cross examination the prosecutor improperly asked Jones's girlfriend, Trina King, about whether she knew

Jones was a drug dealer. Jones contends that the question was inflammatory and prejudicial because the prosecutor knew that King had no

first-hand knowledge that Jones was a drug dealer, as evidenced by

her grand jury testimony. Jones concedes that the trial court's curative

instruction was sound, but contends that because the jury's verdict

was based almost completely on the testimony of accomplices, a mistrial was warranted. However, the question was clearly an isolated

remark in a two-day trial, and there was extensive evidence of Jones's

guilt absent the remark. Further, the district court was in the best position to observe the jury's reaction to the question and to the curative

instruction. On this record, Jones cannot establish that the district

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court abused its discretion in denying the motion. See generally

James v. Jacobson, 6 F.3d 233, 239 (4th Cir. 1993) (discussing abuse

of discretion).

Finally, Jones contends that the district court should have granted

his motion for a new trial on counts one, three, and four because the

evidence was insufficient to support the jury's guilty verdict on these

counts. This court reviews a challenge to the sufficiency of the evidence in the light most favorable to the government. Glasser v.

United States, 315 U.S. 60, 80 (1942). The court considers both circumstantial and direct evidence, and allows the government the benefit of all reasonable inferences from the facts established to those

sought to be established. United States v. Tresvant, 677 F.2d 1018

(4th Cir. 1982). The credibility of witnesses is in the sole province of

the jury and is not subject to appellate review. United States v.

Saunders, 886 F.2d 56 (4th Cir. 1989).

The evidence at trial established that Jones, Angelo White, James

Robinson, and others traveled to New York together from time to

time beginning in January 1994; the purpose of these trips was to purchase drugs for resale in West Virginia. The trips were sometimes

made in Jones's car. The group sometimes returned to West Virginia

together, and sometimes separately, by car, train, or plane. On each

of at least five trips, Jones, White, and Robinson purchased one-half

kilogram of cocaine base. On several occasions, White traveled to

New York on behalf of Robinson and Jones, buying drugs with

money supplied by them. If any of the participants ran out of cocaine

base between trips to New York, the others would supply him with

drugs to sell until the next trip.

On March 18, 1995, White and Frank Fazio traveled to New York

by plane, bringing cash for a drug deal; they met Robinson, Jones,

and a person known as "Mark" at the airport. The group went to a

motel in New Jersey. Fazio stayed at the motel while the others drove

to New York City. During the trip, White agreed to buy 15.5 ounces

of cocaine base from Mark; Jones and Robinson were present during

the transaction. The next day, the entire group went to pick up the

cocaine base White had agreed to buy. White's cocaine base was

strapped to Fazio's chest with duct tape, as was cocaine base purchased by Jones and Robinson.

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Jones and Robinson flew back to West Virginia together. Jones

gave Fazio a slip of paper with the name "Ralph Fishburn" on it, and

told Fazio he had a reservation in that name to fly back to West Virginia. Fazio, Jones, Robinson, and White met during a layover in the

Pittsburgh airport, and Jones told Fazio to take a cab to White's house

after he arrived in West Virginia. Jones supplied Fazio with cab fare.

In the Charleston, West Virginia, airport, Fazio was stopped by a

drug interdiction team that had been looking for him. Fazio identified

himself as "Ralph," and consented to a search of his person and his

bag. The officers discovered 1009 grams of cocaine base and 59.8

grams of powder cocaine in bags taped to Fazio's body, and they

arrested him. The team also stopped Robinson in the airport, but they

later released him. The team did not stop Jones.

White was arrested in the airport after the officers searched him

and found marijuana. He implicated Jones and Robinson in the conspiracy. White informed the police that Jones lived with his girlfriend,

Trina King. He also told officers that Jones usually took King to her

job each morning in her white Honda Civic.

The police spotted Jones taking King to work in King's Honda, and

arrested him after a high speed car chase. King consented to a search

of her apartment. The officers found a Glock semi-automatic handgun, a magazine and ammunition for the gun, a scale, a pager, three

rolls of duct tape, $2140 in cash, a vial of marijuana, and several

pieces of false identification.

We find that the evidence was sufficient to support Jones's conviction on each of the challenged counts. To support the conspiracy

charge in count one, the Government had to prove: (1) existence of

a conspiracy, (2) that the defendant knew of the conspiracy, and (3)

that the defendant voluntarily became a part of the conspiracy. United

States v. Burgos, 94 F.3d 849, 857 (4th Cir. 1996), petition for cert.

filed, ___ U.S.L.W. ___ (U.S. Nov. 21, 1996) (No. 96-6868). Agreement to participate in a conspiracy need not be shown by direct evidence, and may be established by viewing the defendant's

relationship with the conspirators and the nature of the conspiracy. Id.

at 857-58. The evidence clearly established that Jones, White, Robinson, and others worked together to obtain and distribute cocaine. They

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traveled together to New York on numerous occasions to purchase

drugs, and when any of them ran short of drugs between trips they

supplied each other with drugs. On occasion, the conspirators enlisted

assistance in obtaining drugs for the benefit of the conspiracy. The

testimony of the other conspirators established that Jones knew of the

conspiracy and voluntarily participated in it. Accordingly, the district

court did not err in denying the motion for a new trial on count one.

To support the conviction on count three, the Government had to

prove that Jones aided and abetted both possession of drugs and the

intent to distribute them. United States v. Williams, 985 F.2d 749, 752

(5th Cir. 1993); United States v. Kelly, 888 F.2d 732, 742 (11th Cir.

1989). Jones's participation in many trips to New York to purchase

drugs, along with his conduct in arranging for Fazio to transport

Jones's drugs from New York to West Virginia, for distribution by

Jones and others in West Virginia, was adequate to support his conviction on count three.

Finally, to support Jones's conviction on count four, the Government had to prove that he aided travel in interstate commerce with the

intent to promote unlawful activity, and that the unlawful activity was

accomplished or attempted. United States v. Gallo, 782 F.2d 1191,

1194 (4th Cir. 1986); United States v. Tavelman , 650 F.2d 1133, 1140

(9th Cir. 1981). Here, the evidence established that the conspirators

traveled by plane from West Virginia to New Jersey, and then by car

from New Jersey to New York, for the sole purpose of obtaining

drugs for distribution in West Virginia. Further, Jones aided Fazio's

interstate travel by making his plane reservation and giving him cab

fare so Fazio could transport drugs from New York to West Virginia.

The conspirators actually obtained the drugs and transported them to

West Virginia. Finally, this was not an isolated incident, but the last

of a series of similar drug buying trips to New York. The district court

did not err in refusing to grant Jones's motion for a new trial on this

count.

We affirm Jones's conviction and sentence. We dispense with oral

argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not significantly aid the decisional process.

AFFIRMED

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