                                                                  [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT
                                ________________________           FILED
                                                          U.S. COURT OF APPEALS
                                       No. 10-10881         ELEVENTH CIRCUIT
                                   Non-Argument Calendar        APRIL 8, 2011
                                 ________________________        JOHN LEY
                                                                  CLERK
                          D.C. Docket No. 2:09-cr-00031-MEF-TFM-2

UNITED STATES OF AMERICA,

lllllllllllllllllllll                                                    Plaintiff-Appellee,

                                        versus

KELVIN SUMMERS,

lllllllllllllllllllll                                              Defendant-Appellant.

                                ________________________

                          Appeal from the United States District Court
                              for the Middle District of Alabama
                                ________________________

                                        (April 8, 2011)



Before HULL, MARTIN and BLACK, Circuit Judges.

PER CURIAM:
      Kelvin Summers appeals his convictions and 160-month sentence for

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

§ 846, and distribution of crack cocaine, in violation of 21 U.S.C. § 841(a)(1).

Summers asserts the district court erred when it: (1) permitted a Government

Confidential Source (CS) to refresh his recollection by listening to audio, and

viewing video evidence outside the presence of the jury; (2) denied Summers’

motion for judgment of acquittal, or in the alternative, new trial because there was

insufficient evidence to show a conspiracy to distribute crack cocaine; and (3)

applied a two-level role enhancement pursuant to U.S.S.G. § 3B1.1(c). We

address each issue in turn, and affirm Summers’ convictions and sentence.

                                          I.

      Summers first asserts the district court erred when it allowed a CS to refresh

his recollection by listening to audio recordings and viewing a videotape outside

the presence of the jury. He further claims the court’s actions “violated his rights

to a fair trial, confrontation and effective assistance of counsel as guaranteed

under the Sixth Amendment . . . and Rules 601 and 602 of the Federal Rules of

Evidence.”

       We review a district court’s evidentiary rulings for an abuse of discretion.

United States v. Frank, 599 F.3d 1221, 1240 (11th Cir. 2010), cert. denied, 131 S.

                                          2
Ct. 186 (2010). Claims of constitutional error are reviewed de novo. United

States v. Williams, 527 F.3d 1235, 1239 (11th Cir. 2008).

      The district court did not abuse its discretion when it allowed the CS to

refresh his recollection using audio and video recordings outside the presence of

the jury. Our determination of this issue corresponds with Third Circuit precedent.

See United States v. American Radiator and Standard Sanitary Corp., 433 F.2d

174, 191 (3d Cir. 1970) (finding no abuse of discretion when the district court

allowed the use of tapes and earphones to refresh a witness’s memory).

Furthermore, the CS was competent to testify to what he independently

remembered after having his recollection refreshed. See Fed. R. Evid. 612; United

States v. Scott, 701 F.2d 1340, 1346 (11th Cir. 1983).

      In addition, there was no violation of Summers’ Sixth Amendment right to a

jury trial and to confront the witnesses against him. First, because the audio and

video had not yet been admitted into evidence, the court did not err in allowing the

CS to refresh his recollection with those recordings outside the presence of the

jury. See Jenkins v. United States, 404 F.2d 873, 874 (5th Cir. 1968) (holding that

matters “properly taken up outside the presence and hearing of the jury . . . [do]

not affect an appellant’s right to a jury trial.”). Further, Summers had a full

opportunity to effectively cross-examine the witness about his memory lapse, his

                                          3
potential bias, his criminal history, and his recollection of the events in this case.

See United States v. Baptista-Rodriguez, 17 F.3d 1354, 1371 (11th Cir. 1994)

(“the Constitution is offended only when the defendant is denied the opportunity

effectively to attack the credibility of the prosecution’s witness[].”).1

                                                 II.

       Summers next contends the district court erred in denying his motion for

judgment of acquittal because there was insufficient evidence to establish beyond

a reasonable doubt that he agreed to possess with intent to distribute crack

cocaine. Specifically, he claims there was no evidence showing he was near the

apartment where the drug deal occurred, or that the evidence introduced by the

Government clearly established his involvement in the drug conspiracy.

       We review a district court’s denial of a motion for judgment of acquittal de

novo, applying the same standard used in reviewing sufficiency of the evidence.

United States v. Descent, 292 F.3d 703, 706 (11th Cir. 2002). In reviewing the

sufficiency of the evidence, we view “the evidence in the light most favorable to

the government,” resolving “any conflicts in favor of the government and


       1
         We decline to consider Summers’ ineffective assistance of counsel claim because he
raised it on direct appeal, and the district court has not had the opportunity to consider this issue
or develop a factual record. See United States v. Bender, 290 F.3d 1279, 1284 (11th Cir. 2002)
(“[w]e will not generally consider claims of ineffective assistance of counsel raised on direct
appeal where the district court did not entertain the claim nor develop a factual record.”).

                                                  4
accept[ing] all reasonable inferences that tend to support the government’s case.”

Williams, 527 F.3d at 1244. We will affirm “a conviction if a reasonable trier of

fact could find that the evidence established guilt beyond a reasonable doubt.” Id.

(quotation omitted).

      To prove that a defendant conspired to possess crack cocaine with the intent

to distribute, the government must prove “that (1) an illegal agreement existed;

(2) the defendant knew of it; and (3) the defendant, with knowledge, voluntarily

joined it.” United States v. McDowell, 250 F.3d 1354, 1365 (11th Cir. 2001). The

government may prove the defendant’s participation in the conspiracy without

direct evidence if “a common purpose and plan may be inferred from a

development and collocation of circumstances.” Id. (quotations omitted).

      There was sufficient evidence for a reasonable jury to conclude beyond a

reasonable doubt that Summers knowingly agreed to possess with intent to

distribute crack cocaine. See Williams, 527 F.3d at 1244. The evidence showed

Summers sent the CS to an apartment where Summers’ co-conspirators were

waiting to sell crack cocaine under the terms to which Summers and the CS had

agreed. See McDowell, 250 F.3d at 1365.




                                         5
                                               III.

       Lastly, Summers contends the district court erred in applying a two-level

sentence enhancement under U.S.S.G. § 3B1.1(c). Specifically, he claims the

evidence adduced at trial did not show he asserted control or influence over his co-

defendant Sylvester Vaughn.2

       A § 3B1.1(c) enhancement is appropriate if the defendant asserted control or

influence over “at least one other participant in the crime.” United States v.

Glover, 179 F.3d 1300, 1302 (11th Cir. 1999). We have previously held that a

district court did not clearly err in giving a § 3B1.1(c) enhancement where a

defendant found a seller, set the price of the drug, and determined a time and

location. See United States v. Otero, 890 F.2d 366, 367 (11th Cir. 1989).

           The district court did not err in applying the § 3B1.1(c) enhancement. The

court found that Summers directed his co-conspirators inside the apartment to sell

crack cocaine to the CS and this finding was not in clear error. Accordingly, we

affirm Summers’ convictions and sentence.

       AFFIRMED.




       2
        We review “findings of fact for clear error” and the application of the Sentencing
Guidelines de novo. United States v. Gupta, 572 F.3d 878, 887 (11th Cir. 2009).

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