UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                                       No. 98-4157
JASON J. SMITH, a/k/a Phillip Daniel
Smith,
Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of West Virginia, at Martinsburg.
W. Craig Broadwater, District Judge.
(CR-97-17)

Submitted: October 9, 1998

Decided: November 23, 1998

Before WIDENER, WILLIAMS, and MICHAEL, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Paul G. Taylor, HENRY, TAYLOR & JANELLE, Martinsburg, West
Virginia, for Appellant. William D. Wilmoth, United States Attorney,
Thomas O. Mucklow, Assistant United States Attorney, Martinsburg,
West Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

A jury convicted Jason J. Smith of conspiracy to possess with
intent to distribute crack cocaine. On appeal, Smith alleges that the
district court should have granted his motion for downward departure
based on the disparate sentences imposed on him and his co-
conspirators; that there was insufficient evidence to prove that the
drugs involved were crack cocaine, as opposed to some other form of
cocaine; that the district court erred in determining his role in the
offense; that the district court should not have admitted evidence and
testimony concerning the expenditures made by one of his co-
conspirators; that his criminal history score overrepresented the seri-
ousness of his misconduct; and that the district court erred by striking
a juror for cause over defense counsel's objection. Finding no revers-
ible error, we affirm.

Smith was part of a large drug conspiracy that distributed crack
cocaine in the Northern District of West Virginia, and he eventually
became the primary dealer in his area. Smith set the local price for
crack cocaine and controlled several street-level dealers. Law
enforcement officers broke up the conspiracy after a series of con-
trolled purchases, and several of Smith's co-conspirators testified
against him at trial.

Because Smith did not raise the issue of disparate sentences at trial,
we review his claim for plain error and find none. See United States
v. Davis, 954 F.2d 182, 187 (4th Cir. 1992) (failure to raise sentenc-
ing issues at trial reviewed for plain error). It is well settled that
"[u]nder the law of this circuit, disparate sentences among codefen-
dants is an impermissible ground for departure." United States v.
Perkins, 108 F.3d 512, 515 (4th Cir. 1997). We find Smith's reliance
on United States v. Meza, 127 F.3d 545 (7th Cir. 1997), cert. denied,
___ U.S. ___, 118 S.Ct. 1103 (1998), misplaced because nothing in

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Meza contradicts current circuit law as it applies to this case. Several
of Smith's co-conspirators pled guilty pursuant to plea agreements
and testified against him. Any disparity between the sentences of
these co-conspirators and Smith would be justified under Meza. Smith
fails to allege that such a disparity would have been caused by any-
thing other than a correct application of the Sentencing Guidelines.
Therefore, there was no basis upon which to grant a departure even
if this circuit recognized the district court's ability to do so.

We review Smith's assertion that the evidence was insufficient to
show that the drugs involved were crack cocaine for clear error and
find none. See United States v. McManus, 23 F.3d 878, 882 (4th Cir.
1994). During Smith's trial, the court spoke in terms of crack cocaine,
and all of the witnesses testified that he was a crack dealer. Both the
presentence report and the court's findings of fact at sentencing iden-
tified the substance in question as crack cocaine. Smith never
objected to the characterization of the drugs as crack, and it was never
suggested that he dealt in any other form of cocaine.

The district court's factual determination concerning Smith's role
in the offense will only be reversed if it was clearly erroneous. See
United States v. Campbell, 935 F.2d 39, 46 (4th Cir. 1991). In the
present case, we find that the record supports the district court's con-
clusion that Smith was a manager in the conspiracy. Smith's co-
conspirators testified that he was the primary dealer in his area. Smith
received his drugs from a major supplier in Washington, D.C., and he
controlled the local distribution network for the conspiracy. Smith set
the local price for crack, and some of the dealers he sold to further
distributed the drugs to even lower-level dealers.

A district court's evidentiary decisions are reviewed for abuse of
discretion, and we find no such abuse here. See United States v. Has-
san El, 5 F.3d 726, 731 (4th Cir. 1993). Smith alleges that the district
court erroneously admitted testimony and exhibits concerning lavish
expenditures made by his supplier. We disagree. The supplier testified
that he invested in an Internet website and purchased expensive jew-
elry, clothing, and an automobile with proceeds from his drug activi-
ties. While Smith was only one of the supplier's customers, this

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testimony supported the Government's evidence concerning the
amount of drugs involved in Smith's conspiracy.*

We find meritless Smith's assertion that the district court erred by
failing to grant him a downward departure based on his belief that his
criminal history score significantly overrepresented the likelihood that
he would commit crimes in the future. Since the district court recog-
nized its authority to depart on this basis, its refusal to do so is not
reviewable on appeal. See United States v. Bayerle, 898 F.2d 28, 30-
31 (4th Cir. 1990).

Finally, we review the district court's conduct of voir dire for abuse
of discretion and find none. See United States v. Griley, 814 F.2d 967,
974 (4th Cir. 1987). During voir dire, the court asked the jurors
whether any of them had been a witness in a criminal trial. One juror
responded that he had been a defense witness in a state drug case. The
juror also told the court that he did not trust informants because the
one in the state case lied. When defense counsel asked the juror
whether he could be fair and impartial in this case, the juror
responded that he did not know and would have to hear the evidence
first. Over defense objection, the court struck the juror for cause.

On appeal, Smith alleges that the district court should have con-
ducted a more thorough examination of the juror and elicited an affir-
mative response concerning his ability to serve in an impartial
manner. We need not address this issue because Smith has failed to
show, or even assert, that he suffered any prejudice from the striking
of this particular juror. See Griley, 814 F.2d at 974 ("The burden is
on [Smith] to show that the trial court's conduct of voir dire preju-
diced him and led to an unfair trial.").

We therefore affirm Smith's conviction and sentence. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.

AFFIRMED
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*We reject Smith's contention that the evidence violated Fed. R. Evid.
404(b). The spending of large amounts of money on lavish things is
hardly a "bad act" or "wrong." Moreover, Smith was not doing the
spending.

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