     Case: 10-60164     Document: 00511522752         Page: 1     Date Filed: 06/28/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           June 28, 2011
                                     No. 10-60164
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JIMMY GATHRITE, also known as Cheatta,

                                                  Defendant-Appellant


                   Appeals from the United States District Court
                      for the Southern District of Mississippi
                              USDC No. 3:09-CR-58-4


Before WIENER, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        A jury convicted Defendant-Appellant Jimmy Gathrite of possession with
intent to distribute cocaine base in violation of 21 U.S.C. § 841(a). The district
court sentenced him to 62 months in prison. In this appeal, Gathrite presents
four issues for review.
        Gathrite first contends that the district court abused its discretion in
ruling that, in his opening statement, he could not refer to evidence that he had
been released on bond pending trial to obtain drug treatment. Gathrite asserts

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                  No. 10-60164

that the district court’s ruling negatively affected his ability to present his
theory of the case, i.e., that, because he was a drug user rather than a drug
dealer, he was not involved in the drug transaction at issue. The record reflects,
however, that Gathrite repeatedly advanced the theory of his case during his
cross-examination of the government’s witnesses and in his closing argument,
and that he never revisited the court’s evidentiary ruling. Thus, Gathrite has
failed to show that the district court’s evidentiary ruling constituted an abuse
of discretion. See United States v. Clark, 577 F.3d 273, 287 (5th Cir.), cert.
denied, 130 S. Ct. 809 (2009).
      Gathrite next claims that the district court abused its discretion during
voir dire when it directed the government to use one of its peremptory challenges
to excuse prospective juror Gladys Rounds. As Gathrite failed to object to the
voir dire proceedings, we review for plain error. See United States v. Birdsell,
775 F.2d 645, 651-52 (5th Cir. 1985). The record reflects that the government
willingly used its last peremptory challenge to excuse Rounds, a prospective
juror who likely could have been excused for cause after she stated that she
would hold a defendant’s failure to testify against him, and the government
could not rehabilitate her. See United States v. Whitfield, 590 F.3d 325, 360 (5th
Cir. 2009), cert. denied, 131 S. Ct. 124 (2010). Gathrite has not alleged that the
government’s peremptory challenge was exercised for a discriminatory purpose
or infringed his own challenges. Neither has he alleged that the jurors who
actually served were not impartial; as such, he has shown no basis for reversal
of his conviction on this ground. See Whitfield, 590 F.3d at 360. Gathrite has
failed to show that the district court plainly erred in overseeing the voir dire
proceedings. See Birdsell, 775 F.2d at 652-53.
      Gathrite next complains that the government failed to prove an element
of the offense of conviction, viz., that he intended to distribute cocaine base. See
United States v. Cain, 440 F.3d 672, 675 (5th Cir. 2006). As Gathrite moved for
a judgment of acquittal at the close of the government’s case and again at the

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close of all the evidence, he preserved his sufficiency challenge. See FED. R.
CRIM. P. 29(a); United States v. Ferguson, 211 F.3d 878, 882 (5th Cir. 2000). The
evidence in the instant case, which includes testimony and an audio recording,
gives ample support for the jury’s verdict. It shows that Gathrite intended to
distribute cocaine base because he was the person who handed the cocaine base
to the buyer during the transaction. Therefore, “considering all the evidence in
the light most favorable to the verdict, a reasonable trier of fact could have
found” beyond a reasonable doubt that Gathrite possessed cocaine base with the
intent to distribute it. See United States v. Mendoza, 226 F.3d 340, 343 (5th Cir.
2000).
      Next, Gathrite contends that the district court should have imposed a
sentence that was less than the mandatory minimum sentence of 60 months
based on either the safety valve exception in 18 U.S.C. § 3553(f) or the disparity
between sentences for crack cocaine and powder cocaine offenses (crack/powder
disparity). Following United States v. Booker, 543 U.S. 220 (2005), sentences are
reviewed for reasonableness in light of the sentencing factors in § 3553(a).
United States v. Mares, 402 F.3d 511, 519-20 (5th Cir. 2005). We review the
district court’s application of the guidelines de novo and its findings of fact for
clear error. See United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir.
2008).
      Gathrite’s offense of conviction involved 11.4 grams of cocaine base, so he
was subject to a mandatory minimum sentence of 60 months in prison. See
§ 841(b)(1)(B). Gathrite might have avoided the imposition of the mandatory
minimum sentence, however, pursuant to the so-called “safety valve” provision
of § 3553(f), if he were able to satisfy five criteria. United States v. Lopez, 264
F.3d 527, 529-30 (5th Cir. 2001). The fifth criterion, the only one at issue here,
requires the defendant truthfully to provide the government with all information
and evidence that he has regarding the offense. § 3553(f)(5). At his sentencing
hearing, Gathrite insisted that he satisfied the fifth criterion when he talked to

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law enforcement officials about his drug addiction, which led to his participation
in a drug treatment program. The district court ruled that Gathrite had not
provided the information required by § 3553(f)(5). The record supports the
district court’s determination. Accordingly, the district court did not clearly err
in ruling that Gathrite failed to satisfy 3553(f)(5). See United States v. Edwards,
65 F.3d 430, 432 (5th Cir.1995).
      Finally, Gathrite claims that the district court should have imposed a
lesser sentence on him in light of the crack/powder disparity, asserting that the
district court failed to consider his argument. The record contradicts Gathrite’s
assertion: It reflects that the district court was aware of the crack/ powder
disparity, including the fact that the issue was then pending before Congress,
but that the district court rejected Gathrite’s arguments. Accordingly, Gathrite’s
reliance on United States v. Burns, 526 F.3d 852, 860-61 (5th Cir. 2008), a case
in which the district court indicated that it did not have the discretion to
consider arguments regarding the crack/powder disparity, is misplaced.
      AFFIRMED.




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