UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

No. 99-4656

JOHN CLARENCE JOHNSON, JR., a/k/a

JJ,

Defendant-Appellant.

Appeal from the United States District Court

for the District of South Carolina, at Greenville.

Henry M. Herlong, Jr., District Judge.

(CR-98-922)

Submitted: March 28, 2000

Decided: April 26, 2000

Before WIDENER, MICHAEL, and TRAXLER, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Benjamin T. Stepp, Assistant Federal Public Defender, Greenville,

South Carolina, for Appellant. Harold Watson Gowdy, III, OFFICE

OF THE UNITED STATES ATTORNEY, Greenville, South Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

John C. Johnson, Jr., appeals his convictions and sentences for conspiracy to possess with intent to distribute cocaine and possession

with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)

(1994). For the reasons that follow, we affirm.

A.

Johnson's Anders brief raises four claims.* Johnson first challenges the admissibility of his statements to Agent Mark Poag of the

Drug Enforcement Agency (DEA).

The admissibility of Johnson's statements turns on whether the

confession is voluntary. See 18 U.S.C. § 3501 (1994); United States

v. Dickerson, 166 F.3d 667, 684 (4th Cir. 1999), cert. granted, 68

U.S.L.W. 3361 (U.S. Dec. 6, 1999) (No. 99-5525); United States v.

Braxton, 112 F.3d 777, 781 (4th Cir. 1997). We review the voluntariness of confessions de novo. See Braxton, 112 F.3d at 781. A statement given freely and voluntarily without any compelling influences

is admissible in evidence. See Miranda v. Arizona, 384 U.S. 436, 478

(1966). The government bears the burden of establishing, by prepon-

_________________________________________________________________

*Johnson's counsel has filed a brief pursuant to Anders v. California,

386 U.S. 738 (1967). Accordingly, the Clerk of this Court notified Johnson of his right to file a pro se supplemental brief. In response to Johnson's motions for extension of time, the court extended the time within

which to file the brief until January 3, 2000. On January 12, 2000, and

again on February 14, 2000, Johnson moved for another extension of

time. Because it is clear from the record that Johnson is entitled to no

relief, and because the court gave Johnson two prior extensions, we deny

his two pending motions for extension of time. We also deny his motions

to receive the complete record, to dismiss counsel, and to appoint new

counsel or proceed pro se.

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derance of the evidence, the voluntariness of a confession. See Lego

v. Twomey, 404 U.S. 477, 489 (1972); Braxton , 112 F.3d at 781.

Shortly after his arrest, Johnson was interviewed by Poag. Poag

advised Johnson of his rights in accordance with Miranda, and Johnson waived his rights and agreed to talk to Poag. Johnson confessed

to Poag that he agreed to provide William Brazel with a half kilogram

of cocaine. Johnson further confessed that after unsuccessful attempts

to obtain the cocaine, he contacted William Wilkins in Florence,

South Carolina. Johnson also admitted that Wilkins and Arthur

Kinder came from Florence the night before the proposed exchange

with Brazel and that they repackaged the cocaine at Johnson's house.

Johnson contended that he made these statements prior to learning his

rights, and Poag testified that the statements were made after Johnson

was given a Miranda warning. The district court chose to credit

Poag's version of events.

A review of the record demonstrates that the district court's decision to credit Poag's testimony was not clearly erroneous. Therefore,

we deny relief on this claim. See United States v. Gray, 137 F.3d 765,

771-72 (4th Cir. 1998), cert. denied, ___ U.S. ___, 67 U.S.L.W. 3234

(U.S. Oct. 5, 1998) (No. 97-9680).

B.

Johnson next claims that the district court erred in denying his

motion for acquittal pursuant to Fed. R. Crim. P. 29.

The standard of review for deciding a Rule 29 motion is "whether

there is substantial evidence (direct or circumstantial) which, taken in

the light most favorable to the prosecution, would warrant a jury finding that the defendant was guilty beyond a reasonable doubt." United

States v. MacCloskey, 682 F.2d 468, 473 (4th Cir. 1982). In determining the issue of substantial evidence, we neither weigh the evidence

nor consider the credibility of witnesses. See United States v. Arrington, 719 F.2d 701, 704 (4th Cir. 1983).

The government presented substantial evidence sufficient to warrant the jury's finding of guilty beyond a reasonable doubt. Johnson

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admitted that he, Kinder, and Wilkins agreed to deliver cocaine to

Brazel, and further admitted that he had previously sold an ounce of

cocaine to Brazel. The only issue in dispute was whether Johnson was

entrapped by Brazel. Brazel testified that Johnson approached him

with an offer to sell drugs. Conversely, Johnson testified that Brazel

repeatedly approached him. The district court allowed the jury to consider entrapment as a defense. In rejecting the entrapment defense, the

jury implicitly credited Brazel's version of events. Because this court

does not review the factual determinations made by a jury, see

Arrington, 719 F.2d at 704, we deny relief on this claim.

C.

Following the jury verdicts, Johnson made several pro se motions

for a new trial based upon juror misconduct. Johnson claimed that

some jurors were sleeping during trial and that he witnessed some of

the jurors improperly discussing the case before it was submitted to

them. This court reviews denials of motions for mistrial based upon

juror misconduct for abuse of discretion. See United States v. Dorsey,

45 F.3d 809, 817 (4th Cir. 1995).

The district court found that, based upon its observations of the

jury throughout the trial, jurors were not sleeping or otherwise not

paying attention. The record is devoid of any evidence that this finding was clearly erroneous. Moreover, because Johnson failed to

promptly bring to the court's attention any sleeping or unattentive

jurors, the district court correctly found that Johnson waived his right

to a new trial based upon juror misconduct. See United States v.

Dean, 667 F.2d 729, 733-34 (8th Cir. 1982). Accordingly, we deny

relief on this claim.

D.

Johnson raised several objections to his sentence. We review factual determinations made in sentencing proceedings for clear error

and legal conclusions de novo. See United States v. Blake, 81 F.3d

498, 503 (4th Cir. 1996). The district court's factual findings must be

supported by a preponderance of the evidence. See United States v.

Brooks, 957 F.2d 1138, 1148 (4th Cir. 1992).

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Johnson claims that the inclusion of cocaine and crack cocaine

found in Wilkins' truck should not be attributed to him for the purpose of determining his base offense level. Johnson admitted he initiated the acquisition of drugs by Wilkins in Florence, South Carolina.

Johnson also admitted he and Wilkins cut and repackaged the cocaine

later found in Wilkins' truck. The district court, therefore, properly

held Johnson responsible for these drugs. See United States v. Irvin,

2 F.3d 72, 78 (4th Cir. 1993).

Johnson claims that the district court erroneously denied a reduction in his offense level for acceptance of responsibility pursuant to

USSG § 3E1.1 (1998). Johnson asserted his innocence throughout his

trial and sentencing. He is therefore not entitled to an acceptance of

responsibility adjustment. See USSG § 3E1.1, comment (n. 1(a));

United States v. Dickerson, 114 F.3d 464, 470 (4th Cir. 1997).

Finally, Johnson challenged the drug amount attributable to him as

relevant conduct. Johnson claimed that the drugs involved in a deal

that took place in Florida were not properly attributable to him as relevant conduct for the instant offense; that the information used to set

relevant conduct drug amounts was given to Agent Poag under an

immunity agreement and therefore should not have been used against

him; and that the drug amounts in the pre-sentence report were factually incorrect.

Johnson's claims are without merit. Johnson admitted that in order

to consummate his first sale of cocaine to Brazel, he obtained one

ounce of cocaine from a source in Florida. This transaction was the

link the district court relied on to connect Johnson with on-going drug

activity in Florida. The district court therefore did not clearly err in

attributing the cocaine transactions between Johnson and his contact

in Florida as relevant conduct.

Johnson's remaining claims of immunity and erroneous drug

amounts boil down to attacks on the credibility of Agent Poag. The

district court decided to credit Poag's testimony, finding that no

immunity agreement existed and that Johnson had, in fact, provided

Poag with the information that formed the basis of the drug amounts

in the pre-sentence report. The district court's findings regarding the

credibility of witnesses are entitled to deference in this court. There-

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fore, Johnson's sentence will not be reversed on this ground. See

United States v. Saunders, 886 F.2d 56, 60 (4th Cir. 1989).

As this is an Anders appeal, we have thoroughly reviewed the

record, including the transcripts and the pre-sentence report, and find

no reversible error. 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 Johnson 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

Johnson.

We 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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