UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                                      No. 95-5766
BANDELE M. JONES, a/k/a Dele, a/k/a
Bandele D. Jones, a/k/a Bandele
Monchun Jones,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
Charles H. Haden II, Chief District Judge.
(CR-95-51)

Submitted: January 28, 1997

Decided: February 10, 1997

Before MURNAGHAN and HAMILTON, Circuit Judges,
and PHILLIPS, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Barbara H. Allen, James A. McKowen, ALLEN & ALLEN, L.C.,
Charleston, West Virginia, for Appellant. Rebecca A. Betts, United
States Attorney, Monica K. Schwartz, Assistant United States Attor-
ney, Charleston, West Virginia, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Bandele Jones appeals his conviction, after a jury trial, of conspir-
acy to distribute and possess with intent to distribute cocaine base, 21
U.S.C. § 846 (1994) (count 1); aiding and abetting possession with
intent to distribute cocaine and cocaine base, 21 U.S.C. § 841(a)(1)
(1994) (count 3); aiding and abetting travel in interstate commerce to
facilitate unlawful drug activity, 18 U.S.C. § 1952(a)(3) (1994) (count
4); and possession with intent to distribute cocaine base, 21 U.S.C.
§ 841(a)(1) (1994) (count 5). He was sentenced to 360 months in
prison and five years supervised release. Finding no error, we affirm.

Jones first claims that this court should revisit its prior decisions
holding that the disparity in sentencing between cocaine base and
powder cocaine offenses is constitutionally permissible. United States
v. Fisher, 58 F.3d 96, 98-100 (4th Cir.), cert. denied, ___ U.S. ___,
64 U.S.L.W. 3720 (U.S. Oct. 10, 1995) (No. 95-5923); United States
v. Byrnum, 3 F.3d 769, 774-75 (4th Cir. 1993); United States v.
Thomas, 900 F.2d 37, 38-40 (4th Cir. 1990). Jones relies on the rec-
ommendation of the United States Sentencing Commission that the
disparity be eliminated, as well as a statement of President Clinton
that "[s]ome adjustment is warranted." However, Congress did not
adopt the Sentencing Commission's recommendation to eliminate or
reduce the disparity. See United States v. Hayden, 85 F.3d 153, 157-
58 (4th Cir. 1996). Therefore, this Court's precedent need not be
revisited, and the disparity presents no ground for overturning Jones's
sentence.

Jones next contends that his sentence of 360 months is dispropor-
tionate to the sentences of his codefendants, who were sentenced to
eighty-four months (Angelo White) and thirty-six months (Frank
Fazio). The sentencing court need not consider the sentence of a code-
fendant when imposing sentence. United States v. Foutz, 865 F.2d

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617 (4th Cir. 1989); United States v. Truelove , 482 F.2d 1361 (4th
Cir. 1973). Further, even comparing the sentences of Jones and his
codefendants, the differences in the sentences at issue are clearly sup-
ported by the record: Jones went to trial, whereas White and Fazio
pled guilty and offered substantial assistance to the Government. Fur-
ther, Jones was more culpable in the conspiracy than were White and
Fazio. Finally, to the extent that Jones challenges the district court's
refusal to depart downward based on his codefendants' sentences, dis-
parity of sentences among codefendants is not a ground for downward
departure absent prosecutorial misconduct, which is not alleged here.
United States v. Fonville, 5 F.3d 781 (4th Cir. 1993). See also United
States v. Bayerle, 898 F.2d 28 (4th Cir. 1990) (district court's refusal
to depart downward is not appealable). Therefore, the district court
did not err in imposing Jones's sentence.

Jones next contends that improper statements made by the prosecu-
tor warranted a mistrial. This court reviews the denial of a motion for
mistrial for abuse of discretion. Hayden, 83 F.3d at 156. To show an
abuse of discretion, the appellant must show prejudice. Id. In assess-
ing improper prosecutorial comments, the court looks to: (1) the
degree to which the comments misled the jury and prejudiced the
defendant; (2) whether the remarks were isolated or extensive;
(3) whether absent the remarks, the evidence established the defen-
dant's guilt; and (4) whether the comments were deliberately made to
divert the jury's attention to extraneous matters. United States v.
Harrison, 716 F.2d 1050 (4th Cir. 1983).

Jones alleges that during cross examination the prosecutor improp-
erly asked Jones's girlfriend, Trina King, about whether she knew
Jones was a drug dealer. Jones contends that the question was inflam-
matory and prejudicial because the prosecutor knew that King had no
first-hand knowledge that Jones was a drug dealer, as evidenced by
her grand jury testimony. Jones concedes that the trial court's curative
instruction was sound, but contends that because the jury's verdict
was based almost completely on the testimony of accomplices, a mis-
trial was warranted. However, the question was clearly an isolated
remark in a two-day trial, and there was extensive evidence of Jones's
guilt absent the remark. Further, the district court was in the best posi-
tion to observe the jury's reaction to the question and to the curative
instruction. On this record, Jones cannot establish that the district

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court abused its discretion in denying the motion. See generally
James v. Jacobson, 6 F.3d 233, 239 (4th Cir. 1993) (discussing abuse
of discretion).

Finally, Jones contends that the district court should have granted
his motion for a new trial on counts one, three, and four because the
evidence was insufficient to support the jury's guilty verdict on these
counts. This court reviews a challenge to the sufficiency of the evi-
dence in the light most favorable to the government. Glasser v.
United States, 315 U.S. 60, 80 (1942). The court considers both cir-
cumstantial and direct evidence, and allows the government the bene-
fit of all reasonable inferences from the facts established to those
sought to be established. United States v. Tresvant, 677 F.2d 1018
(4th Cir. 1982). The credibility of witnesses is in the sole province of
the jury and is not subject to appellate review. United States v.
Saunders, 886 F.2d 56 (4th Cir. 1989).

The evidence at trial established that Jones, Angelo White, James
Robinson, and others traveled to New York together from time to
time beginning in January 1994; the purpose of these trips was to pur-
chase drugs for resale in West Virginia. The trips were sometimes
made in Jones's car. The group sometimes returned to West Virginia
together, and sometimes separately, by car, train, or plane. On each
of at least five trips, Jones, White, and Robinson purchased one-half
kilogram of cocaine base. On several occasions, White traveled to
New York on behalf of Robinson and Jones, buying drugs with
money supplied by them. If any of the participants ran out of cocaine
base between trips to New York, the others would supply him with
drugs to sell until the next trip.

On March 18, 1995, White and Frank Fazio traveled to New York
by plane, bringing cash for a drug deal; they met Robinson, Jones,
and a person known as "Mark" at the airport. The group went to a
motel in New Jersey. Fazio stayed at the motel while the others drove
to New York City. During the trip, White agreed to buy 15.5 ounces
of cocaine base from Mark; Jones and Robinson were present during
the transaction. The next day, the entire group went to pick up the
cocaine base White had agreed to buy. White's cocaine base was
strapped to Fazio's chest with duct tape, as was cocaine base pur-
chased by Jones and Robinson.

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Jones and Robinson flew back to West Virginia together. Jones
gave Fazio a slip of paper with the name "Ralph Fishburn" on it, and
told Fazio he had a reservation in that name to fly back to West Vir-
ginia. Fazio, Jones, Robinson, and White met during a layover in the
Pittsburgh airport, and Jones told Fazio to take a cab to White's house
after he arrived in West Virginia. Jones supplied Fazio with cab fare.

In the Charleston, West Virginia, airport, Fazio was stopped by a
drug interdiction team that had been looking for him. Fazio identified
himself as "Ralph," and consented to a search of his person and his
bag. The officers discovered 1009 grams of cocaine base and 59.8
grams of powder cocaine in bags taped to Fazio's body, and they
arrested him. The team also stopped Robinson in the airport, but they
later released him. The team did not stop Jones.

White was arrested in the airport after the officers searched him
and found marijuana. He implicated Jones and Robinson in the con-
spiracy. White informed the police that Jones lived with his girlfriend,
Trina King. He also told officers that Jones usually took King to her
job each morning in her white Honda Civic.

The police spotted Jones taking King to work in King's Honda, and
arrested him after a high speed car chase. King consented to a search
of her apartment. The officers found a Glock semi-automatic hand-
gun, a magazine and ammunition for the gun, a scale, a pager, three
rolls of duct tape, $2140 in cash, a vial of marijuana, and several
pieces of false identification.

We find that the evidence was sufficient to support Jones's convic-
tion on each of the challenged counts. To support the conspiracy
charge in count one, the Government had to prove: (1) existence of
a conspiracy, (2) that the defendant knew of the conspiracy, and (3)
that the defendant voluntarily became a part of the conspiracy. United
States v. Burgos, 94 F.3d 849, 857 (4th Cir. 1996), petition for cert.
filed, ___ U.S.L.W. ___ (U.S. Nov. 21, 1996) (No. 96-6868). Agree-
ment to participate in a conspiracy need not be shown by direct evi-
dence, and may be established by viewing the defendant's
relationship with the conspirators and the nature of the conspiracy. Id.
at 857-58. The evidence clearly established that Jones, White, Robin-
son, and others worked together to obtain and distribute cocaine. They

                    5
traveled together to New York on numerous occasions to purchase
drugs, and when any of them ran short of drugs between trips they
supplied each other with drugs. On occasion, the conspirators enlisted
assistance in obtaining drugs for the benefit of the conspiracy. The
testimony of the other conspirators established that Jones knew of the
conspiracy and voluntarily participated in it. Accordingly, the district
court did not err in denying the motion for a new trial on count one.

To support the conviction on count three, the Government had to
prove that Jones aided and abetted both possession of drugs and the
intent to distribute them. United States v. Williams, 985 F.2d 749, 752
(5th Cir. 1993); United States v. Kelly, 888 F.2d 732, 742 (11th Cir.
1989). Jones's participation in many trips to New York to purchase
drugs, along with his conduct in arranging for Fazio to transport
Jones's drugs from New York to West Virginia, for distribution by
Jones and others in West Virginia, was adequate to support his con-
viction on count three.

Finally, to support Jones's conviction on count four, the Govern-
ment had to prove that he aided travel in interstate commerce with the
intent to promote unlawful activity, and that the unlawful activity was
accomplished or attempted. United States v. Gallo, 782 F.2d 1191,
1194 (4th Cir. 1986); United States v. Tavelman , 650 F.2d 1133, 1140
(9th Cir. 1981). Here, the evidence established that the conspirators
traveled by plane from West Virginia to New Jersey, and then by car
from New Jersey to New York, for the sole purpose of obtaining
drugs for distribution in West Virginia. Further, Jones aided Fazio's
interstate travel by making his plane reservation and giving him cab
fare so Fazio could transport drugs from New York to West Virginia.
The conspirators actually obtained the drugs and transported them to
West Virginia. Finally, this was not an isolated incident, but the last
of a series of similar drug buying trips to New York. The district court
did not err in refusing to grant Jones's motion for a new trial on this
count.

We affirm Jones's conviction and sentence. We dispense with oral
argument because the facts and legal contentions are adequately pres-
ented in the materials before the court and argument would not signif-
icantly aid the decisional process.

AFFIRMED

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