* 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this opinion should not be published and is not precedent except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.

United States Court of Appeals

Fifth Circuit

FILED

October 29, 2004

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 04-30264

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

SHARONDA D. GILLARD, 

also known as Sealed Defendant #2,

Defendant-Appellant.

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

Appeal from the United States District Court

for the Middle District of Louisiana

USDC No. 02-CR-98-2

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

Before WIENER, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:*

Sharonda D. Gillard appeals her jury convictions and

concurrent 97-month sentences for conspiracy to possess with

intent to distribute cocaine base and distribution of cocaine

base. Gillard contends that the district court erred when it

denied her motions for a judgment of acquittal. She asserts that

the evidence was not sufficient to establish that she had the

requisite criminal knowledge and intent.
No. 04-30264

-2-

We review de novo the district court’s denial of a judgment

of acquittal and apply the same standard as in a general review

of the sufficiency of the evidence. See United States v. Payne,

99 F.3d 1273, 1278 (5th Cir. 1996). We must determine “whether

viewing the evidence and the inferences therefrom ‘in a light

most favorable to the jury’s guilty verdicts, a rational trier of

fact could have found [Gillard] guilty beyond a reasonable

doubt.’” Id. (citation omitted).

The evidence established that Gillard distributed crack

cocaine to a confidential informant and an undercover Drug

Enforcement Agent. The evidence proved Gillard’s knowledge of

the offenses, her intent to participate in the conspiracy, and

that Gillard committed acts in furtherance of the conspiracy. 

Because the evidence of Gillard’s guilt was sufficient, the

district court did not err in denying a judgment of acquittal. 

See id.

Gillard challenges the district court’s refusal to instruct

the jury on the defenses of entrapment and duress. We review de

novo the district court’s refusal to provide a requested jury

instruction. United States v. Gutierrez, 343 F.3d 415, 419 (5th

Cir. 2003). 

To be entitled to an entrapment instruction, a defendant

must produce evidence of (1) a “‘lack of predisposition to commit

the offense and (2) some governmental involvement and inducement

more substantial than simply providing an opportunity or
No. 04-30264

-3-

facilities to commit the offense.’” Id. The critical inquiry is

whether the criminal intent originally resided in the defendant

or whether the Government planted the seed of criminality. Id.

Gillard’s testimony demonstrated her predisposition to act

in concert with her co-defendant to distribute crack cocaine so

that she could obtain crack cocaine for her own use. Gillard

does not argue that she lacked the predisposition to commit the

offenses on May 30, 2002, the date that the drug transaction

occurred. The evidence shows that Gillard committed the offenses

without provocation from the Government. Gillard has not shown

that she was entitled to an entrapment instruction. See

Gutierrez, 343 F.3d at 419.

Gillard asserts that the jury should have been instructed on

the defense of duress; she argues that the jury should have been

allowed to decide whether, in light of her desperate situation,

her conduct was reasonable and whether she had a reasonable

alternative to the illegal acts. Gillard did not produce

evidence that when she committed the offenses, she was under an

imminent and impending threat of serious injury or death, nor did

she provide proof that she did not negligently place herself in

the situation and that she had no reasonable alternative to

violating the law. See United States v. Posada-Rios, 158 F.3d

832, 873 (5th Cir. 1998). Accordingly, Gillard did not make the

showing that is required to obtain an instruction on duress. Id.

at 874.
No. 04-30264

-4-

Gillard asserts that the district court erred when it denied

her motion for a mistrial after prejudicial audio-taped evidence

was presented to the jury during deliberations. Gillard has not

shown that, viewed in light of the entire record, the

objectionable evidence had an impact on the jury and was

prejudicial. United States v. Honer, 225 F.3d 549, 555 (5th Cir.

2000). Accordingly, Gillard has not shown that the district

court abused its discretion. Id.

Gillard asserts that the district court clearly erred by

denying a reduction under U.S.S.G. § 3B1.2 for her minor role in

the offenses. We review the district court’s finding on a

defendant’s role in an offense for clear error. United States v.

Deavours, 219 F.3d 400, 404 (5th Cir. 2000). 

The evidence established that Gillard was as culpable as the

others who were involved in the offenses. Gillard has not shown

that the district court’s decision to deny the reduction was

clearly erroneous. Id.

Finally, as Gillard concedes, her argument that her sentence

was imposed in violation of Apprendi v. New Jersey, 530 U.S. 466

(2000), and Blakely v. Washington, 124 S. Ct. 2531, 2537 (2004),

is foreclosed by circuit precedent. United States v. Pineiro,

377 F.3d 464, 465-66 (5th Cir. 2004), petition for cert. filed,

(U.S. July 14, 2004) (No. 04-5263). The judgment of the district

court is AFFIRMED. 
No. 04-30264

-5-

We, however, REMAND to the district court with an

instruction to correct a clerical error in the judgment pursuant

to FED. R. CRIM. P. 36 to reflect that Gillard was convicted in

Count One of conspiracy to possess with intent to distribute

cocaine base.

AFFIRMED and REMANDED with instruction.