UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                                       No. 99-4310
PAUL MONROE COVINGTON, JR., a/k/a
Speedie,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Samuel G. Wilson, Chief District Judge.
(CR-98-50)

Submitted: January 11, 2000

Decided: February 4, 2000

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

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

Aaron E. Michel, Charlotte, North Carolina, for Appellant. Mark T.
Calloway, United States Attorney, D. Scott Broyles, Assistant United
States Attorney, Charlotte, North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Appellant Paul Monroe Covington, Jr. was convicted of participat-
ing in a drug-trafficking conspiracy. In this appeal, he raises six chal-
lenges to his conviction and two against his sentence. We affirm.

This prosecution arose from a drug conspiracy in southern North
Carolina. The major importer of powder cocaine in the region was
Ronald Tyrone Sowell. He supplied cocaine to several people, but one
of his largest customers was Larry Donnell Lindsey, the leader of the
conspiracy in this case. Lindsey and the subordinates within his orga-
nization then cooked the powder into crack, which they cut up and
sold to distributors within the conspiracy.

In the early 1990's, Covington bought drugs from Sowell and sold
them to Lindsey. Later, these roles were reversed, with Lindsey buy-
ing directly from Sowell and Covington purchasing from Lindsey.
Covington, in turn, had dealers resell some of the drugs he obtained
from Lindsey.

Based on these activities, a grand jury indicted Covington and
eighteen other members of the Lindsey organization. The sole count
naming Covington as a defendant charged him with conspiracy to dis-
tribute and possess with intent to distribute cocaine and cocaine base.
After all his co-defendants pled guilty, Covington was convicted of
this charge and sentenced to life imprisonment. This appeal followed.

Covington raises eight claims concerning the judgment against
him. None of these claims has merit.

First, Covington asserts that the district court violated the Speedy
Trial Act, 18 U.S.C. § 3161 (1994), by granting three continuances to
accommodate his co-defendants. Covington does not assert that these

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postponements were inherently unreasonable, but only that they
improperly impinged on his rights. He never moved for severance,
however. Accordingly, the time involved in these postponements is
not included in speedy trial calculations under§ 3161(h)(7). See
United States v. Tedder, 801 F.2d 1437, 1450 (4th Cir. 1986); see also
United States v. Franklin, 148 F.3d 451, 456-58 (5th Cir. 1998) (not-
ing split in the circuits over whether defendant's failure to move for
severance defeats or merely weighs against speedy trial motion,
adopting the latter view, and concluding defendant's speedy trial
motion was meritless).

When these continuances are excluded, the remaining delay was
twenty-five days, well within the seventy-day limit prescribed by the
Speedy Trial Act. See 18 U.S.C. § 3161(c)(1). Covington therefore is
not entitled to reversal on speedy trial grounds.

In his second assignment of error, Covington alleges that the prose-
cutor used peremptory challenges to remove African-Americans from
the jury, in violation of the Equal Protection Clause as interpreted in
Batson v. Kentucky, 476 U.S. 79 (1986). The reasons offered by the
prosecutor in response to this allegation when it was raised at trial
were race-neutral and therefore satisfied the Government's burden of
production. See Purkett v. Elem, 514 U.S. 765, 768 (1995) (per
curiam); United States v. Martinez, 168 F.3d 1043, 1047 (8th Cir.
1999). Furthermore, we find no abuse of discretion in the procedures
followed by the district court during its Batson inquiry. See United
States v. Lane, 866 F.2d 103, 104 (4th Cir. 1989).

Covington next contends that he is entitled to a new trial because,
as the result of a mistake when the jury was empaneled, a juror who
had been accepted by both parties was not seated; instead, a juror who
had been struck by the defense sat with the jury until this mistake was
discovered, at which point he was replaced by an alternate. This claim
provides no basis for appellate relief, both because the trial court
properly exercised its discretion by the manner in which it resolved
the error and because Covington was not prejudiced. See United
States v. Nelson, 102 F.3d 1344, 1349 (4th Cir. 1996).

Covington next assails the prosecutor for two remarks he made
during his opening statement. We hold that the first of these remarks,

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in which the prosecutor used an analogy to explain how the facts of
this case fit into the conspiracy charge, was not improper. See United
States v. De Peri, 778 F.2d 963, 979 (3d Cir. 1985). Even if the sec-
ond challenged remark--relating to witness credibility--was
improper, we find no prejudice. See United States v. Brockington, 849
F.2d 872, 875 (4th Cir. 1988) (holding that improper remark by prose-
cutor requires reversal only if it deprived defendant of fair trial);
United States v. Shaw, 829 F.2d 714, 717 18 (9th Cir. 1987) (holding
that prosecutor's vouching for witness's credibility was not reversible
error).

Covington next asserts that the Government's evidence was insuffi-
cient to link him to the Lindsey conspiracy. We disagree. The evi-
dence established that Covington collaborated extensively with the
Lindseys. Ronald Tyrone Sowell, Lindsey's major supplier, testified
that he sold drugs directly to Covington from 1991 to 1993. After
that, according to Lindsey, Covington bought drugs from Lindsey,
who sold crack cocaine in large quantities (3.5 grams) with the intent
that it be resold in smaller doses. Lindsey's wife, who was Coving-
ton's cousin, reported that Covington sometimes paid for his cocaine
but that it was sometimes fronted to him. It was therefore evident that,
after 1993, Covington was part of the Lindsey organization's distribu-
tion chain. This demonstrates a stronger connection than is required
to prove a conspiracy. See United States v. Morsley, 64 F.3d 907,
919-20 (4th Cir. 1995).

In his last challenge to his conviction, Covington contends that the
prosecutor committed misconduct during closing argument by making
a relatively brief initial summation and then giving a longer and more
detailed rebuttal argument. As noted by Covington, Rule 29 of the
Federal Rules of Criminal Procedure limits the Government's rebuttal
arguments to the issues raised by the defense's argument. We con-
clude that the district court did not abuse its discretion in ruling that
the prosecutor had not strayed beyond this limitation. See United
States v. Sarmiento, 744 F.2d 755, 766 (11th Cir. 1984).

Finally, Covington raises two claims of error relating to his sen-
tence. First, he challenges the imposition of two sentencing enhance-
ments, on the basis that the predicate facts were found by the judge
and the standard of proof was only a preponderance of the evidence.

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Covington contends that the Fifth and Sixth Amendments require a
jury hearing with proof beyond a reasonable doubt. As the Supreme
Court has made clear, however, the Constitution does not require a
jury hearing on sentencing factors that enhance a defendant's mini-
mum penalty without raising the statutory maximum. See Jones v.
United States, 526 U.S. 227, ___, 119 S. Ct. 1215, 1224 n.6 (1999).
Moreover, the enhancements were supported by a preponderance of
the evidence.

In his second sentencing challenge, Covington asserts that the dis-
trict court should have departed downward from the sentencing guide-
lines because Covington has already served a state prison sentence
arising from his participation in the Lindsey gang. To the extent that
Covington is invoking double jeopardy principles, this argument is
misguided, because the Double Jeopardy Clause does not apply to
serial prosecutions by different sovereigns. See Abbate v. United
States, 359 U.S. 187, 196 (1959). To the extent that Covington is
challenging the district court's exercise of discretion in refusing to
depart downward, this claim is not reviewable. See United States v.
Ivester, 75 F.3d 182, 183 (4th Cir. 1996).

For the foregoing reasons, we affirm Covington's conviction and
sentence. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the court
and argument would not aid the decisional process.

AFFIRMED

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