* Pursuant to 5TH CIR. 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that this opinion should not be published and is not precedent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 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 00-20448

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GEORGE WASHINGTON SIMMONS,

Defendant-Appellant.

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

Appeal from the United States District Court

for the Southern District of Texas

USDC No. H-99-CR-300-1

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

February 12, 2001

Before DAVIS, JONES, and DeMOSS, Circuit Judges.

PER CURIAM:*

George Washington Simmons appeals his conviction and

sentence for three counts of aiding and abetting possession of

cocaine base with intent to distribute. He first argues that the

district court erred in denying his motions for a judgment of

acquittal. The district court did not err in denying Simmons’

motions. The evidence was sufficient to show that Simmons aided

and abetted Harris in the possession of cocaine base with intent

to distribute. See United States v. Stephens, 964 F.2d 424, 427

n.8 (5th Cir. 1992); United States v. Drones, 218 F.3d 496, 505
No. 00-20448

-2-

(5th Cir. 2000). Simmons’ argument that he could not be

convicted of aiding and abetting Harris because Harris was a 

“mule” is baseless; we have upheld convictions in similar factual

scenarios. See United States v. Montgomery, 210 F.3d 446 (5th

Cir. 2000), United States v. Brown, 217 F.3d 247 (5th Cir. 2000). 

Simmons’ argument that he could not be convicted of aiding and

abetting government agents squarely contravenes case law from

this circuit. See United States v. Wise, 221 F.3d 140, 150 (5th

Cir. 2000). The case that Simmons cites in support of this

argument, United States v. Rodgers, 419 F.2d 13125 (5th Cir.

1969), does not exist. This issue borders on frivolity. 

The evidence was also sufficient for the jury to reject

Simmons’ asserted entrapment defense. See United States v.

Bradfield, 113 F.3d 515, 521 (5th Cir. 1997). Simmons has cited

the improper standard of review in his discussion of this issue. 

He argues that the Government failed to rebut his prima facie

case of entrapment and that he was thus entitled to a judgment of

acquittal. However, the issue on appeal is whether the district

court erred in declining to grant Simmons’ motion for judgment of

acquittal because the evidence established the defense as a

matter of law. See United States v. Brace, 145 F.3d 247 (5th

Cir. 1998)(en banc). This argument is also lacking in substance. 

The evidence established that Simmons was predisposed to sell

narcotics, albeit marijuana rather than cocaine, and Simmons

concedes this predisposition in his brief. The district court

did not err in declining to grant Simmons’ motion for judgment of

acquittal based on his asserted defense of entrapment.
No. 00-20448

-3-

1 The brief contains several typographical errors, such as

“aiding in the bedding” and “cracked cocaine.” Brief, 12, 14. 

Counsel also uses the brief to comment at length about

forfeiture, a topic that is not at issue in this appeal. See

brief, 3 n.1. This is inappropriate. 

Simmons’ final argument is that the district court erred in

declining to give his requested jury instruction. This argument

is frivolous. The instruction was inapposite, as it pertained to

conspiracy, and Simmons was not charged with this crime. To the

extent that Simmons wished the jury to be instructed that he

could not aid and abet a government agent, this is an incorrect

statement of law.

This appeal lacks merit and borders on frivolity. 

Accordingly, Simmons’ attorney is cautioned against bringing such

appeals in the future.1 We remind him of his obligations to

refrain from raising frivolous issues on appeal and to avail

himself of the procedures outlined in Anders v. California, 386

U.S. 738 (1967) for disposing of cases that present no

nonfrivolous issues. See United States v. Humphrey, 7 F.3d 1186,

1191 (5th Cir. 1993). We also admonish him that all counsel are

subject to sanctions for bringing frivolous appeals. See United

States v. Burleson, 22 F.3d 93, 95 (5th Cir. 1994). Because

Simmons has failed to demonstrate error on the part of the

district court, that court’s judgment is AFFIRMED.