                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 08-16


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

           v.

SAMUEL MANNING,

                  Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News.    Jerome B. Friedman,
District Judge. (4:07-cr-00081-JBF-JEB-2)


Argued:   December 3, 2009                  Decided:   January 21, 2010


Before WILKINSON, SHEDD, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Jon Michael Babineau, RIDDICK BABINEAU, PC, Suffolk,
Virginia; Lawrence Hunter Woodward, Jr., SHUTTLEWORTH, RULOFF,
SWAIN, HADDAD & MORECOCK, PC, Virginia Beach, Virginia, for
Appellant.   Brian James Samuels, OFFICE OF THE UNITED STATES
ATTORNEY, Newport News, Virginia, for Appellee. ON BRIEF: Dana
J. Boente, United States Attorney, Alexandria, Virginia; Eric M.
Hurt, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Newport News, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       The    question       in    this        case    is     whether           a     superseding

indictment for Samuel Manning’s involvement in a drug conspiracy

violates      the     Double      Jeopardy          Clause     because          of     his     prior

conviction      for     participating           in     a     separately             charged    drug

conspiracy.         The district court determined by a preponderance of

the    evidence      that    these       two    conspiracies             were       separate     and

distinct and held accordingly that the government was not barred

from    prosecuting        him    in    this    case.         We    review          the     district

court’s factual finding for clear error. United States v. McHan,

966 F.2d 134, 138-39 (4th Cir. 1992).

       On September 11, 2006, a grand jury returned an indictment

charging      Manning       and    four        co-defendants         with,           among    other

things,      conspiring      to    distribute         cocaine,           cocaine       base,     and

heroin    under      the    leadership          of    Kasine        Powers          (the     “Powers

Conspiracy”).         On November 9, 2006, Manning pled guilty to the

conspiracy      charge      and    a     related      count        and    was        subsequently

sentenced to 120 months imprisonment.

       On August 14, 2007, a grand jury returned a superseding

indictment charging Manning with, among other things, conspiring

to     distribute      cocaine         base    with        Donald    Smith           (the     “Smith

Conspiracy”).         Manning filed a motion to dismiss the superseding

indictment on Double Jeopardy grounds.                        Following an evidentiary

hearing,      the      district         court        denied        the     motion.             This

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interlocutory          appeal     followed             pursuant    to        Abney    v.      United

States, 431 U.S. 651, 662 (1977).

         The     district       court          applied     this    court’s         precedent      in

United States v. Ragins, 840 F.2d 1184, 1188-89 (4th Cir. 1998)

to the letter -- determining whether the two conspiracies were

in     fact     the     same     conspiracy             under     the        totality      of    the

circumstances.            In    the        court’s       view,     Manning         made    a    non-

frivolous showing that the two conspiracies were the same: the

time     periods        of      the        two     conspiracies              overlapped,        both

conspiracies          occurred        in       Newport     News,     Virginia,          and     both

involved cocaine base.                But the court ultimately determined that

the two conspiracies were separate by a preponderance of the

evidence.        It emphasized four factors.                      First, the participants

in     the    two     conspiracies             were,    apart     from       Manning,      unique.

Second, Manning’s personal involvement in the Powers Conspiracy

dealt with heroin, but his involvement in the Smith Conspiracy

dealt with cocaine base.                   Third, Manning’s participation in the

Smith        Conspiracy      predated            his     involvement          in     the       Powers

Conspiracy.         Fourth, the two conspiracies differed in scope and

organization; while the Smith Conspiracy was simply an agreement

between Manning and Smith to distribute cocaine base, the Powers

Conspiracy       consisted       of        a    large    network        of    individuals        who

distributed various drugs for Kasine Powers.



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     In light of these factors, it was not clear error for the

district court to find that the two conspiracies were separate

and distinct.   Accordingly, the judgment of the district court

is

                                                      AFFIRMED.




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