aidin                                             NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                              _____________

                                  No. 11-2222
                                 _____________

                        UNITED STATES OF AMERICA

                                        v.

                              JAMAL ANTHONY,

                                        Appellant
                                 _____________

                  On Appeal from the United States District Court
                      for the Middle District of Pennsylvania
                       District Court No. 1-09-cr-00179-002
                  District Judge: The Honorable Sylvia H. Rambo

                Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                               January 12, 2012

            Before: SCIRICA, RENDELL, and SMITH, Circuit Judges

                            (Filed: January 20, 2012)

                            _____________________

                                   OPINION
                            _____________________

SMITH, Circuit Judge.

        On or about April 2, 2009, Jamal Anthony, at the request of his friend

Brandon Wallace, distributed 13.3 grams of crack cocaine to Corey Dickerson, an

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undercover officer with the Dauphin County Criminal Investigation Division.

Thereafter, a two-count indictment charged Brandon and Anthony with distributing

and possessing with the intent to distribute 50 grams of cocaine base and marijuana

in violation of 21 U.S.C. § 841(a)(1) and aiding and abetting the same in violation

of 18 U.S.C. § 2 (Count I), and conspiracy to distribute five grams and more of

cocaine base in violation of 21 U.S.C. § 846 (Count II).

      Anthony maintained his innocence and proceeded to trial. The government

presented, inter alia, the testimony of Officer Dickerson, who identified Anthony

as the person from whom he purchased the crack cocaine, Detective Jason Paul,

who conducted the surveillance video, and Anthony’s co-conspirator Wallace.

Near the end of the government’s case-in-chief, the defense moved for a judgment

of acquittal on Count I because the government had not adduced any evidence to

show that Anthony had distributed 50 grams or more of cocaine. The Court noted

that the “jury could find less than that.” Defense counsel acknowledged as much,

but urged the Court to dismiss the charge to the extent it alleged that 50 grams or

more had been distributed. The government acceded to that request, but asked for

a finding of five grams or more. The Court granted the motion. Thereafter, the

defense presented two witnesses.      No rebuttal was offered.    The jury found

Anthony guilty on Count I with respect to the distribution of cocaine base of five

grams or more, and the conspiracy offense charged in Count II. At sentencing, the

Court granted a one-level downward variance in recognition of the disparity
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between crack and powder cocaine, yielding a guidelines range of 84 to 105

months, and sentenced him to 105 months of imprisonment. This timely appeal

followed, challenging Anthony’s conviction on several grounds and seeking to set

aside his sentence.1

      Anthony submits that his conviction should be set aside because of a Batson

violation.   See Batson v. Kentucky, 467 U.S. 79, 98-99 (1986).          The record

demonstrates that while the parties were exercising their peremptory challenges,

the defense asked the government to state its race-neutral reason for striking one of

the two African-American venirepersons. Before the District Court could even

address whether Anthony had established a prima facie case of purposeful

discrimination, the government cited the individual’s employment and its inability

to determine whether he had any connection with activity that had been the subject

of both state and federal investigations over the past two years. Although the

defendant bears the burden of demonstrating that the government’s action

constituted purposeful discrimination, id. at 93, defense counsel neither challenged

the government’s reason nor presented to the District Court any argument that it

should reject the government’s strike.

      Before us Anthony submits that the government’s reason was insufficient

and pretextual.   But he offers no discussion of the circumstances that would


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    The District Court had jurisdiction under 18 U.S.C. § 3231. We exercise
jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
                                         3
support a finding that the government exercised its strike on account of the

individual’s race.   Accordingly, we review for plain error and will set aside

Anthony’s conviction only if we conclude that the error affected his substantial

rights. United States v. Olano, 507 U.S. 725, 734 (1993).

      In light of the race-neutral reason offered without hesitation by the

government and Anthony’s failure to offer any argument to demonstrate that the

reason was pretextual, we are not convinced that Anthony actually raised a Batson

challenge that required the Court to proceed to the third step in the Batson analysis.

Nonetheless, assuming that the Court erred by failing to engage in Batson’s third

step, we conclude that the error did not affect Anthony’s substantial rights given

the circumstances before us.

      Anthony contends that the District Court also erred by denying his motion to

suppress the police officer’s identification. “Where a motion to suppress has been

denied, we review the order ‘for clear error as to the underlying facts, but exercise

plenary review as to its legality in the light of the court’s properly found facts.’”

United States v. Brownlee, 454 F.3d 131, 137 (3d Cir. 2006) (citation omitted).

      “An identification procedure that is both (1) unnecessarily suggestive and

(2) creates a substantial risk of misidentification violates due process.” Id. (citing

Manson v. Brathwaite, 432 U.S. 98, 107 (1977)).           In Brathwaite, the Court

acknowledged that “identifications arising from single-photograph displays may be

viewed in general with suspicion.” 432 U.S. at 116 (citing Simmons v. United
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States, 390 U.S. 377, 383 (1968)). The Court instructed, however, that the inquiry

does not end there as “reliability is the linchpin in determining the admissibility of

identification testimony . . . The factors to be considered . . . include the

opportunity of the witness to view the criminal at the time of the crime, the

witness’ degree of attention, the accuracy of his prior description of the criminal,

the level of certainty demonstrated at the confrontation, and the time between the

crime and the confrontation. Against these factors is to be weighed the corrupting

effect of the suggestive identification itself.” Id. at 114 (citing Neil v. Biggers, 409

U.S. 188, 199-200 (1972)).

      Here, after hearing the testimony of Officer Dickerson, who purchased the

crack cocaine, and Officer Paul, who conducted the surveillance video, the Court

determined that Officer Dickerson’s identification was sufficiently reliable given

the circumstances surrounding his observations and the subsequent identification.

The Court specifically noted Officer Dickerson’s close attention to Anthony’s

physical appearance, his certainty that he had identified the correct individual, and

the fact that he cited specific details regarding Anthony’s features. Our review of

the record provides no basis for disturbing the District Court’s determination that

Officer’s Dickerson’s identification was admissible at trial.

      According to Anthony, the District Court also erred by refusing to limit the

government’s cross-examination of a defense witness, Glenn Walker, who testified

that Brandon had informed him while in prison that Anthony had not been
                                           5
involved. Anthony sought to exclude reference to the fact that the conversation

occurred while both were incarcerated. We review a District Court’s ruling on the

admissibility of evidence under Federal Rule of Evidence 403 for an abuse of

discretion. United States v. Vosburgh, 602 F.3d 512, 537 (3d Cir. 2010). After

consideration of the record, we conclude that the District Court did not abuse its

discretion in concluding that the context of the conversation, which was relevant to

Walker’s motive and credibility, was admissible.

      Additionally, Anthony challenges his conviction for knowingly distributing

and possessing with the intent to distribute cocaine under Count I on the basis that

the Court improperly amended the indictment by changing the alleged 50 grams of

cocaine to 5 grams or more. The government asserts that the Court permissibly

instructed the jury on the lesser included offense of distributing and possessing

with the intent to distribute five grams of cocaine. We review de novo a claim that

there was a constructive amendment of the indictment. Id. at 531. We agree with

the government that the District Court’s instruction on the lesser included offense

did not constitute a constructive amendment. United States v. Martinez, 430 F.3d

317, 340 (6th Cir. 2005); see also United States v. Vazquez, 271 F.3d 93, 105 (3d

Cir. 2001) (en banc); Fed. R. Crim. P. 31(c).

      Finally, Anthony argues that the District Court erred at sentencing by

attributing to him an additional ten grams of cocaine based on Brandon’s

testimony. Anthony asserts that Brandon’s testimony failed to establish that he
                                         6
gave this additional quantity of cocaine during the period of the conspiracy

charged in the indictment. For that reason, Anthony submits that the District Court

erred by including the ten grams of cocaine base in the computation of the drug

quantity for purposes of sentencing.

      Anthony’s argument challenges the District Court’s calculation of his

sentencing guidelines range. Because this raises a contention of procedural error,

we review for an abuse of discretion. United States v. Tomko, 562 F.3d 558, 567-

68 (3d Cir. 2009) (en banc). In Tomko, we noted that “an abuse of discretion has

occurred if a district court based its decision on a clearly erroneous factual

conclusion or an erroneous legal conclusion.” Id. at 568. We have carefully

reviewed the record before us and we reject Anthony’s contention of error. After

considering Brandon’s trial testimony and the testimony of the agent from the

Federal Bureau of Investigation about his meeting with Brandon, the District Court

concluded that the ten grams Anthony received was not for personal use, but “was

going to be used for sale or distribution.” Thus, it was appropriately included in

the drug quantity calculation as uncharged conduct that was part of the same

course of conduct as the offense of conviction. See Jansen v. United States, 369

F.3d 237, 249-50 (3d Cir. 2004) (concluding that drugs possessed for personal use

should not be included in computation of drug quantity for offense of possessing

with the intent to distribute). The fact that Anthony’s receipt of the cocaine

preceded the timeframe alleged in the indictment did not preclude the Court from
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considering it. United States v. Stephens, 198 F.3d 389, 390-91 (3d Cir. 1999)

(noting that Sentencing Reform Act does not place any limitations on the

information a sentencing court may consider (citing 18 U.S.C. § 3661)), see also

Witte v. United States, 515 U.S. 389, 399, 403 (1995) (concluding that

consideration at sentencing of uncharged criminal conduct did not offend the

Double Jeopardy Clause and was permissible under the sentencing guidelines).

      For the above reasons, we will affirm the judgment of the District Court.




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