UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

No. 96-4906

DUANE JELEAL OSBOURNE, a/k/a

Rocky, a/k/a Duane Anthony

Osborne,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of North Carolina, at Charlotte.

Richard L. Voorhees, Chief District Judge.

(CR-95-178-V)

Submitted: April 7, 1998

Decided: May 19, 1998

Before LUTTIG and MICHAEL, Circuit Judges, and

PHILLIPS, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Alan Dexter Bowman, P.A., Newark, New Jersey, for Appellant.

Mark T. Calloway, United States Attorney, Gretchen C.F. Shappert,

Assistant United States Attorney, Charlotte, North Carolina, for

Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Duane Jeleal Osbourne was convicted by a jury of conspiring to

possess with intent to distribute and to distribute cocaine and crack

cocaine within 1000 feet of a playground in violation of 21 U.S.C.A.

§§ 846, 860 (West Supp. 1998). He appeals his conviction and sentence, contending that (1) there was an impermissible variance

between the indictment that charged a single conspiracy and the evidence at trial that Osbourne claims established multiple conspiracies;

(2) the district court erred by failing to instruct the jury on multiple

conspiracies; and (3) the district court erred by enhancing his base

offense level by two levels under USSG § 2D1.2(a)(1)* because the

playground is not "open to the public." Because Osbourne failed to

raise these issues in the district court, our review is for plain error. See

United States v. Olano, 507 U.S. 725, 732-37 (1993). We affirm.

Osbourne first claims that the district court sua sponte should have

dismissed the charge against him because there was a variance

between the indictment and the evidence at trial."In a conspiracy

prosecution, a defendant may establish the existence of a material

variance by showing that the indictment alleged a single conspiracy

but that the government's proof at trial established the existence of

multiple, separate conspiracies." United States v. Kennedy, 32 F.3d

876, 883 (4th Cir. 1994). To show that multiple conspiracies existed,

Osbourne relies on Darwin Mobley's testimony that at some point

during the conspiracy, he stopped working for his uncle, Paul Mobley, and began his own drug distribution business. Osbourne overlooks the fact that he supplied Darwin Mobley with the drugs to

distribute. Moreover, other co-conspirators testified that they transported drugs for Osbourne from New York to the Grier Heights

neighborhood in Charlotte, North Carolina, and that Osbourne was

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*U.S. SENTENCING GUIDELINES MANUAL (1995).

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one of their suppliers. To the extent that Osbourne attacks his coconspirators' testimony because they pled guilty to participating in

the conspiracy and received lighter sentences, we do not review the

credibility of witnesses or weigh the evidence. See United States v.

Wilson, 118 F.3d 228, 234 (4th Cir. 1997). Because there was overwhelming evidence of a single conspiracy, we find no plain error

here.

Nor did the district court plainly err in failing to instruct the jury

on multiple conspiracies. Failure to give a jury instruction on multiple

conspiracies, even if the evidence supports such an instruction, is not

reversible error unless a defendant can show he was involved in a separate conspiracy unrelated to the overall conspiracy charged in the

indictment. See United States v. Howard, 115 F.3d 1151, 1157 (4th

Cir. 1997); Kennedy, 32 F.3d at 884. Osbourne cannot make such a

showing. The evidence at trial sufficiently proved that Osbourne was

a main actor in the conspiracy charged in the indictment.

Finally, Osbourne contends that the district court erred in applying

a two-level enhancement of his base offense level under USSG

§ 2D1.2(a)(1). He claims that as a matter of law, § 860 does not apply

to privately owned and maintained facilities, such as the playground

at the apartment complex in Grier Heights, and therefore that the

playground was not "open to the public." The issue of whether the

playground was "open to the public" was a question of fact for the

jury. See United States v. Horsley, 56 F.3d 50, 51-52 (11th Cir. 1995).

By rendering a special verdict that the conspiracy involved an intent

to distribute cocaine and crack cocaine within 1000 feet of a playground, the jury necessarily found that the playground met the statutory requirements of § 860.

Accordingly, we affirm Osbourne'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 aid the decisional process.

AFFIRMED

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