IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-50445

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

MICHAEL DION ACREY,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 7:09-CR-113-3

Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.

PER CURIAM:

*

Michael Dion Acrey appeals his conviction of conspiracy to possess with

the intent to distribute a controlled substance, crack cocaine, and of using a

juvenile to commit a drug offense. After the jury found Acrey guilty of these two

offenses, the district court sentenced Acrey to concurrent 135-month terms of

imprisonment, five and eight year concurrent terms of supervised release, and

a $200 special assessment.

United States Court of Appeals

Fifth Circuit

F I L E D

February 21, 2011

Lyle W. Cayce

Clerk

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.

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No. 10-50445

Acrey argues that the evidence was insufficient to support either of his

convictions. He contends that the evidence gave nearly equal circumstantial

support to a theory of innocence and, that to reach his convictions, the jury

unduly piled inference upon inference.

The jury was free to infer the existence of a conspiracy based on the

testimony it heard from Natesha Ennis that the sale to Acrey was a consignment

sale; to conclude that the purchases about which they heard testimony were for

distribution based on the total amount of crack involved, the expert’s testimony

regarding distribution quantities, and the testimony that Acrey purchased a

large quantity of crack twice in only two days; and to credit the consistent

testimony of the juvenile and Ennis over that of Acrey. See United States v.

Garcia, 567 F.3d 721, 732 (5th Cir.), cert. denied, 130 S. Ct. 303 (2009); United

States v. Mata, 491 F.3d 237, 242 (5th Cir. 2007); United States v. Posada-Rios,

158 F.3d 832, 860 (5th Cir. 1998). There was also ample evidence presented to

the jury, through the testimony of the juvenile himself, that Acrey hired, used,

or employed a juvenile to violate a federal narcotics law. See United States v.

Lombardi, 138 F.3d 559, 562 (5th Cir. 1998). Because any reasonable trier of

fact could conclude from the evidence presented at Acrey’s trial that the

elements of the offenses were established beyond a reasonable doubt, we uphold

the jury’s verdict. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); United

States v. Mendoza, 226 F.3d 340, 343 (5th Cir. 2000).

Acrey also argues that the district court erred when it allowed the

introduction of evidence of Acrey’s prior drug activity. Acrey concedes that the

evidence he challenges was relevant to his intent. See United States v. Thomas,

348 F.3d 78, 86 (5th Cir. 2003). However, he argues that the admission of this

evidence was an abuse of discretion because it was more prejudicial than

probative.

“We consistently have held that evidence of a defendant’s prior conviction

for a similar crime is more probative than prejudicial and that any prejudicial

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No. 10-50445

effect may be minimized by a proper jury instruction.” United States v. Taylor,

210 F.3d 311, 318 (5th Cir. 2000). This is equally true of uncharged drug

activity. See United States v. Harris, 932 F.2d 1529, 1534 (5th Cir. 1991); United

States v. Beechum, 582 F.2d 898, 914 n.17, 915 n.20, (5th Cir. 1978) (en banc).

Further, the district court instructed the jury of the limited purposes for which

the evidence was admitted. Acrey has not demonstrated that admission of the

evidence of his prior drug activity was an abuse of the district court’s discretion,

even under the heightened standard of review. See United States v. Buchanan,

70 F.3d 818, 831 (5th Cir. 1995).

Acrey last argues that the district court erroneously denied his motion to

suppress the evidence based on his unlawful stop and detention. Acrey admits

that his attorney “has not found any authority to argue that the stop in this case

was unreasonable” and concedes that he voluntarily consented to the search of

his vehicle. Rather, he contends merely that since he preserved this point of

error in the district court, it was included in his brief. However, because Acrey

has pointed to no error with respect to the district court’s ruling on his motion

to suppress, it is the same as if he had not appealed this issue, and the issue is

considered abandoned. See Brinkmann v. Dallas County Deputy Sheriff Abner,

813 F.2d 744, 748 (5th Cir. 1987).

The judgment of the district court is AFFIRMED.

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