* Pursuant to 5TH CIRCUIT RULE 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that this opinion should not be published and is not precedent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 CIRCUIT

RULE 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 97-50754

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

BRIAN KEITH SPRATT; LEONARD EARL DAVIS,

Defendants-Appellants.

_________________________________________________________________

Appeals from the United States District Court

for the Western District of Texas

(W-96-CR-89-5)

_________________________________________________________________

June 9, 1998

Before KING, HIGGINBOTHAM, and DAVIS, Circuit Judges.

PER CURIAM:*

Defendants-appellants Brian Keith Spratt and Leonard Earl

Davis appeal their convictions and sentences for conspiracy to

possess with intent to distribute cocaine and attempted possession

with intent to distribute cocaine pursuant to 21 U.S.C. §§

841(a)(1) and 846. We affirm.

Davis and Spratt argue that there was insufficient evidence of

an agreement between them or anyone else to possess with intent to

distribute cocaine. The evidence is sufficient to show, beyond a

reasonable doubt, that Davis and Spratt had an agreement to possess
2

with intent to distribute the cocaine. See United States v.

Bermea, 30 F.3d 1539, 1551-52 (5th Cir. 1994). Any testimony by

Davis to the contrary (i.e., that he did not make an agreement with

Alvarado or that Spratt did not say anything) is an issue of fact

to be decided exclusively by the jury based upon the credibility of

the witnesses. Such testimony does not create an issue as to the

sufficiency of the evidence. See United States v. Garcia, 995 F.2d

556, 561 (5th Cir. 1993). Spratt’s statement to Alvarado about

“rocking up” the cocaine makes it clear that he and Davis had

agreed to obtain the cocaine and turn it into crack for

distribution.

Davis and Spratt argue that the evidence is insufficient to

show beyond a reasonable doubt that they attempted to possess with

intent to distribute the cocaine. Spratt and Davis traveled to the

Fandango bar carrying almost $18,000, participated in negotiations

for the purchase of a kilogram of cocaine for $18,500, promised

that they could quickly obtain more money to buy two more kilograms

of cocaine if the first one was good, and were walking out to

Alvarado’s vehicle to take possession of the cocaine to determine

its quality when they were arrested. All that remained was for

them actually to take possession. The evidence was sufficient to

show that Spratt and Davis intended and had taken a substantial

step toward the commission of the crime of possession with intent

to distribute cocaine. See United States v. August, 835 F.2d 76,

78 (5th Cir. 1987).

Davis and Spratt argue that the trial court erred in
3

instructing the jury on constructive possession. The instruction

did not result in reversible error because it was at worst

surplusage. It posed no danger of misleading the jury to convict

on a theory not supported by the evidence. United States v.

Kington, 875 F.2d 1091, 1098 (5th Cir. 1989).

Davis argues that the trial court erred in overruling his

objections to the court’s failure to give a jury instruction on the

law of the defense of entrapment. Upon review of the entire

record, Davis has failed to show lack of predisposition or

government inducement. The district court did not abuse its

discretion in not giving the instruction. See United States v.

Branch, 91 F.3d 699, 712-13 (5th Cir. 1996), cert. denied sub nom.,

117 S. Ct. 1466 (1997), and cert. denied, 117 S. Ct. 1467 (1997);

United States v. Ivey, 949 F.2d 759, 768-69 (5th Cir. 1991).

Davis argues that the district court erred in overruling his

objections to evidence that he did not have a sales permit and that

the cellular telephone was a clone. Davis’s defense was based in

part upon his assertion that he was in the business of buying junk

cars, repairing them, and reselling them, which he offered as his

explanation of why he was carrying such a large amount of cash.

Whether he had a permit to do so is relevant to the credibility of

his asserted defense. Regarding the cellular telephone, the trial

court gave a limiting instruction that the telephone evidence was

being offered to show what phone numbers were called from that

telephone and that the jury should not consider whether the

telephone was stolen. After a review of the record and the
4

district court’s instructions to the jury during the trial and

before deliberations, we find that the district court did not abuse

its discretion in admitting either type of evidence or in denying

a mistrial. See United States v. Coleman, 78 F.3d 154, 156-57 (5th

Cir.), cert. denied, 117 S. Ct. 230 (1996); United States v.

Limones, 8 F.3d 1004, 1007-08 (5th Cir. 1993).

Davis and Spratt argue that the district court erred in basing

their sentences on three kilograms of powder cocaine instead of one

kilogram. Davis told Alvarado that he had brought money for only

one kilogram of cocaine, but that if the cocaine was good, he could

get the money to purchase the additional two kilograms within an

hour. “That the agreement was subject to a condition does not make

it any less an agreement.” United States v. Grassi, 616 F.2d 1295,

1302 (5th Cir. 1980). The district court did not clearly err in

sentencing Davis and Spratt based upon three kilograms of powder

cocaine. See United States v. Mergerson, 4 F.3d 337, 345-46 (5th

Cir. 1993).

Spratt argues that the district court erred in failing to

grant his request for a two-level adjustment for a minor role in

the offense. Spratt was going to take part in converting the

powder cocaine into crack to determine its quality, which was a

central part of the conspiracy. The district court did not clearly

err in denying the adjustment. See United States v. Mitchell, 31

F.3d 271, 278-79 (5th Cir. 1994).

AFFIRMED.