UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

No. 96-4284

KEITH NEAL WRIGHT, a/k/a Jazz,

a/k/a Jermone Farrow,

Defendant-Appellant.

Appeal from the United States District Court

for the Middle District of North Carolina, at Durham.

N. Carlton Tilley, Jr., District Judge.

(CR-95-90)

Submitted: January 21, 1997

Decided: February 11, 1997

Before WILKINS, NIEMEYER, and LUTTIG, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

J. Matthew Martin, MARTIN & MARTIN, P.A., Hillsborough, North

Carolina, for Appellant. Walter C. Holton, Jr., United States Attorney,

Gill P. Beck, Assistant United States Attorney, Greensboro, 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Unpublished opinions are not binding precedent in this circuit.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:

Keith Wright appeals his conviction and sentence for conspiracy to

possess with intent to distribute cocaine base in violation of 21 U.S.C.

§ 846 (1994). Wright contends on appeal that his sentence violates the

Equal Protection Clause, the district court should have granted his

motion for acquittal because there was insufficient evidence to support his sentence, that the evidence was insufficient to support a sentencing enhancement, and that the prosecutor made an improper

comment during closing argument. Finding no error, we affirm.

I

Wright 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). Wright relies on the recommendation of the United States Sentencing Commission that the

disparity be eliminated. 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). We decline to revisit our precedent in this area, and hold that

the disparity presents no ground for overturning Wright's sentence.

II

Wright next contends that the district court should have granted his

motion for a new trial because the evidence was insufficient to support the jury's guilty verdict. This Court reviews a challenge to the

sufficiency of the evidence in the light most favorable to the govern-

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ment. Glasser v. United States, 315 U.S. 60, 80 (1942). See generally

United States v. Brooks, 957 F.2d 1138, 1147 (4th Cir. 1992). 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, 1021 (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, 60 (4th Cir. 1989).

Wright's conviction was based almost exclusively on the testimony

of several people with whom he dealt drugs. Not surprisingly, all of

these witnesses had criminal record. All had pled guilty to drug

offenses, and would not be sentenced until after Wright's trial. All

testified that although they had not been promised any specific reduction in exchange for their testimony, they hoped for lighter sentences.

The Government's primary witness was Andre Royster. Royster

testified that after he met Wright, he bought small quantities of

cocaine from Wright to cook into crack cocaine. Thereafter, Royster

started buying crack cocaine from Wright, first in one ounce quantities, later escalating to half kilogram and kilogram quantities. Eventually Royster was buying crack cocaine from Wright at the rate of one

kilogram every seven to ten days. Royster observed several transactions between Wright and other drug dealers, and eventually Wright

began using Royster as the middleman between himself and these

other dealers.

Two other drug dealers also testified that they had purchased substantial quantities of drugs from Wright for resale. James Davis stated

that on one occasion he bought a half kilogram of crack from Wright.

Antwan Smith admitted to buying two ounces of crack at a time from

Wright on five or six occasions.

There was ample testimony at trial to establish that Wright conspired with Royster and others to distribute crack cocaine over a

period of several years. Wright's challenge to this evidence, though,

is that it came from his co-conspirators, drug dealers all, who were

inherently incredible. Accomplice testimony, standing alone, can

serve as the basis for a conviction. United States v. Burnes, 990 F.2d

1426, 1439 (4th Cir. 1993). Further, as the Seventh Circuit has noted,

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"`[w]e cannot expect that witnesses will possess the credibility of

people of the cloth, such as rabbis, priests, and nuns; that is why one

of the jury's roles is to decide the credibility of witnesses.'" United

States v. Rose, 12 F.3d 1414, 1425 (7th Cir. 1994) (quoting United

States v. Rovetuso, 768 F.2d 809, 818 (7th Cir. 1985)). Wright was

able to cross examine each of the witnesses to bring out potential bias

and problems with credibility. The jury's determination that these witnesses were credible is not reviewable on appeal. Accordingly, the

district court did not err in denying Wright's motion for new trial

based on insufficient evidence.

III

Wright next contends that there was not sufficient evidence to support the two-point sentencing enhancement for possession of a firearm. See United States Sentencing Commission, Guidelines Manual,

§ 2D1.1(b)(1) (Nov. 1994). Whether the district court correctly

applied a sentencing enhancement for possession of a firearm during

the commission of a drug conspiracy is essentially a factual question

reviewed for clear error. United States v. Banks , 10 F.3d 1044, 1057

(4th Cir. 1993). Because the question relates to a sentencing enhancement, the Government had the burden of proving possession of a firearm by a preponderance of the evidence. United States v. Powell, 886

F.2d 81, 85 (4th Cir. 1989).

Royster testified that he had seen Wright in possession of various

firearms in relation to the drug business. Contrary to Wright's assertion on appeal, the questions put to Royster were not ambiguous.1

Further, Royster's testimony established both that Wright possessed

firearms and that Wright's possession was connected to his drug

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1 Royster testified:

Q: On the occasions when you did business with Mr. Wright,

did you ever see him in possession of a firearm?

A: Yes, sir.

Q: What type?

A: .32s, 9 millimeters, .45 Glocks, a number of guns.

(J.A. 68).

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offense. United States v. Nale, 101 F.3d 1000, 1004 (4th Cir. 1996).

The district court, relying on Royster's testimony, did not clearly err

in determining that Wright possessed a firearm in relation to the drug

trafficking conspiracy. Accordingly, this challenge is without merit.

IV

Finally, Wright contends that the prosecutor implicated, in his closing statement, that Wright was telling his counsel what to ask during

cross examination of the Government's witnesses, and that the prosecutor's implication was an indirect comment on Wright's decision not

to testify.2 Wright did not object to this statement during the trial, so

it may only be the basis for relief if it amounted to plain error. United

States v. Olano, 507 U.S. 725, 732 (1993).

The prosecutor is forbidden from commenting upon the defendant's silence at trial. Griffin v. California , 380 U.S. 609, 613-14

(1965). "The test for determining whether an indirect remark constitutes an improper comment on a defendant's failure to testify is: `Was

the language used manifestly intended to be, or was it of such character that the jury would naturally and necessarily take it to be a

comment on the failure of the accused to testify.'" United States v.

Whitehead, 618 F.2d 523, 527 (4th Cir. 1980) (quoting United States

v. Anderson, 481 F.2d 685, 701 (4th Cir. 1973), aff'd, 417 U.S. 211

(1974)).

Even if the prosecutor's statement could be considered to implicate

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2 During closing argument, the prosecutor said:

Remember cross examination when Mr. Martin would ask

[Royster] a question and then get his [Martin's] sleeve pulled on

and then all of a sudden, what about "Puma"? What about the S

and M girls? What about "T.T."? He told you he[Royster] went

independent. He told you that on direct examination. But Mr.

Martin will stand before you and say, with a very straight face,

well, the evidence didn't say anything about that until I asked

him about that on cross-examination. Another example of the

evidence not supporting the argument.

(J.A. 240).

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Wright's decision not to testify, any error was harmless. See United

States v. Hastings, 461 U.S. 499, 508 (1983). The evidence at trial

was more than sufficient to support Wright's conviction, and the prosecutor's statement was so tangentially related to Wright's silence at

trial that the jury would not have reached a different conclusion in the

absence of the prosecutor's comment. Finally, even if there was an

error, it does not rise to the level of plain error, as defined in Olano.

Therefore, this claim lacks merit.

We affirm Wright'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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