FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 OCTOBER 5, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 08-10645

Non-Argument Calendar

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D. C. Docket No. 05-00065-CR-FTM-29-DNF

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CLEMENT MCDOWELL,

Defendant-Appellant.

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Appeal from the United States District Court

for the Middle District of Florida

_________________________

(October 5, 2009)

Before EDMONDSON, MARCUS and ANDERSON, Circuit Judges.
PER CURIAM:

Clement McDowell appeals his conviction and 96-month sentence for drug

trafficking, in violation of 21 U.S.C. § 841(a)(1). No reversible error has been

shown; we affirm.

McDowell argues that insufficient evidence existed to convict him. Where,

as here, a defendant fails to move for a judgment of acquittal at the close of all the

evidence, “we will reverse his conviction[] only to prevent a manifest miscarriage

of justice.” United States v. Milkintas, 470 F.3d 1339, 1343 (11th Cir. 2006).

“This standard requires a finding that the evidence on a key element of the offense

is so tenuous that a conviction would be shocking.” Id. (quotation omitted). To

support a conviction for possession with intent to distribute under section

841(a)(1), the government had to establish (1) knowledge of possession; (2)

possession of a controlled substance; and (3) intent to distribute. United States v.

Woodard, 531 F.3d 1352, 1360 (11th Cir. 2008).

Here, testimony -- which was corroborated by a recorded conversation and

video surveillance -- showed that (1) a confidential informant (CI) called

McDowell about purchasing $500 worth of crack cocaine; (2) McDowell met the

CI at the CI’s residence (which was being surveilled by a police officer) with a

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cooler; (3) McDowell allowed the CI to look through the cooler, which had drugs

in it; (4) the CI gave McDowell money with one hand and received two plastic

baggies in the other; and (5) after the transaction, the CI gave the police officer

surveilling the transaction the crack cocaine he had just purchased. This evidence

plainly was sufficient for a jury to find McDowell guilty of drug trafficking; and

we conclude that his conviction was not a manifest miscarriage of justice.

None of McDowell’s appellate arguments negate that the evidence

sufficiently showed that he sold drugs to the CI. His arguments focus on other

possible constructions of the evidence and the credibility of the CI. But the

evidence need not exclude every reasonable hypothesis of innocence, and jurors

are free to choose among reasonable constructions of the evidence. United States

v. Mattos, 74 F.3d 1197, 1199-1200 (11th Cir. 1996). And all inferences and

credibility determinations must be resolved in favor of the jury’s verdict. United

States v. Trujillo, 146 F.3d 838, 845 (11th Cir. 1998).

We now address McDowell’s challenges to his sentence. He argues that his

sentence -- which was 39 months below the low end of the applicable guidelines

range -- is unreasonable because of several alleged guideline calculation errors.

When reviewing a sentence, we must, in pertinent part, ensure that no procedural

error occurred, such as the district court improperly calculating the guidelines,

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basing a sentence on clearly erroneous facts, failing to consider the 18 U.S.C.

§ 3553(a) factors, or failing to explain a variation from the guidelines. United

States v. Livesay, 525 F.3d 1081, 1091 (11th Cir. 2008). We review “the district

court’s application of the sentencing guidelines de novo and its finding of fact for

clear error.” United States v. Baker, 432 F.3d 1189, 1253 (11th Cir. 2005).

McDowell argues that his base offense level should have been based on a

lower drug quantity. He contends that only the purity of the crack cocaine from the

transaction with the CI -- not its entire weight -- should be attributed to him and

that the district court should not have included the additional crack cocaine

“cookie” observed by the CI in McDowell’s cooler because his possession of it

was not proved beyond a reasonable doubt.

The district court committed no clear error in concluding that McDowell was

responsible for at least 35 grams of crack cocaine. Contrary to McDowell’s

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argument that only the pure weight of the cocaine should be considered, the

guidelines provide that “the weight of a controlled substance . . . refers to the entire

weight of any mixture or substance containing a detectable amount of the

controlled substance.” U.S.S.G. § 2D1.1 n.A. And the government was not

This amount came from the transaction with the CI, the additional crack cocaine cookie 1

observed by the CI, and 21 grams of crack cocaine from a dismissed count. McDowell does not

challenge the crack cocaine from the dismissed count. 

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required to prove McDowell’s possession of the additional crack cocaine cookie

beyond a reasonable doubt. See United States v. Rodriguez, 398 F.3d 1291, 1296

(11th Cir. 2005) (when a defendant objects to a fact determination, such as drug

quantity, “the government bears the burden establishing the disputed fact by a

preponderance of the evidence”).

And we conclude that the CI’s approximation of the weight of the additional

cookie was sufficiently accurate. See United States v. Zapata, 139 F.3d 1355, 1359

(11th Cir. 1998) (sentencing cannot be based on calculations of drug quantities that

are merely speculative). The CI -- who previously had been convicted of selling

cocaine -- testified that the cookie weighed approximately 14 grams. McDowell

also testified that there were a couple of bags of crack cocaine at the scene of the

transaction. And the district court determined that the cookie had to weigh only

4.7 grams to reach the 35-gram cutoff for sentencing purposes. See U.S.S.G. §

2D1.1(c)(6).

McDowell argues that he should not have been given an obstruction of

justice enhancement based on perjured testimony at trial because he did not

willfully provide untruthful information; instead, he submits, his testimony was the

product of confusion and faulty memory. We disagree. Obstruction of justice

occurs -- and a two-level enhancement applies -- when, among other things, a

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defendant provides “materially false information to a judge.” U.S.S.G. § 3C1.1,

comment. (n.4(f)). Material evidence is “evidence, fact, statement, or information

that, if believed, would tend to influence or affect the issue under determination.”

U.S.S.G. § 3C1.1, comment. (n.6).

At trial, McDowell testified that he went to the CI’s house with an empty

cooler to purchase drugs for his own personal use. This testimony was belied by

the video of the transaction and the testimony of police officers and the CI; and the

testimony was material on the issue of whether McDowell trafficked in drugs.

Nothing evidences that McDowell’s testimony was based on confusion, mistake, or

faulty memory; and we see no clear error in the district court’s application of the

obstruction of justice enhancment.

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McDowell challenges the district court’s refusal to grant him a downward

departure based on diminished capacity, U.S.S.G. § 5K2.13. But the district court

did not believe that it lacked authority to grant McDowell a downward departure

on this basis, and we cannot review the district court’s refusal to grant the

departure. See United States v. Ortega, 358 F.3d 1278, 1279 (11th Cir. 2003) (a

We reject McDowell’s argument -- raised for the first time on appeal -- that he was 2

entitled to an acceptance of responsibility reduction. See U.S.S.G. § 3E1.1, comment. (n.4)

(conduct that results in an obstruction of justice enhancement “ordinarily indicates that the

defendant has not accepted responsibility for his criminal conduct”). And McDowell did not

admit to his conduct: instead, he proceeded to trial where he testified that he did not sell crack

cocaine to the CI. 

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district court’s refusal to grant a downward departure is unreviewable on appeal

unless the district court believed erroneously that it lacked the authority to grant a

downward departure).

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The district court committed no error in its guidelines’ calculations.

AFFIRMED.

The district court noted that it had considered McDowell’s documented history of 3

mental and emotional problems along with other sentencing factors in section 3553(a) in

sentencing McDowell below the guidelines range.

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