                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 09-4837


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

CLEVE ALEXANDER JOHNSON, a/k/a Cuz,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:08-cr-00233-TDS-1)


Submitted:   December 16, 2010            Decided:   January 31, 2011


Before NIEMEYER, KEENAN, and WYNN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Seth A. Neyhart, STARK LAW GROUP, PLLC, Chapel Hill, North
Carolina, for Appellant. Anna Mills Wagoner, United States
Attorney, Randall S. Galyon, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Cleve     Alexander     Johnson          (hereinafter,       “Cleve”    or

“Johnson”)      appeals   from     his     convictions       for    conspiracy      to

distribute methamphetamine and attempt to possess with intent to

distribute methamphetamine and his resulting 200 month sentence.

After carefully considering his claims on appeal, we affirm.



                                         I.

            Johnson    first     asserts       that    there      was   insufficient

evidence to show that he and his cousin Melvin Johnson conspired

during    the   charged   time     period.           Johnson      argues   that    the

evidence    concerning    a     November      2007    transaction       predated   the

charged    conspiracy 1   and    that    Melvin       was   not   involved    in   any

planned distribution of a pound of methamphetamine in December —

he only acted a facilitator.               According to Johnson, since the

other conspirators were Government agents, the elimination of

Melvin as a conspirator would clear Cleve, as well.


     1
       Johnson also claims that the evidence of the deal before
the charged dates in the conspiracy resulted in a constructive
amendment to his indictment. However, the beginning and ending
dates of a conspiracy are not elements of the offense, so proof
of different dates could never raise the specter of conviction
for a different crime.    See United States v. Benson, 591 F.3d
491, 497 (6th Cir. 2010) (holding that “[w]hen an indictment
uses the language ‘on or about,’ a constructive amendment does
not exist when ‘the proof offered regards a date reasonably near
the date alleged in the indictment’”).



                                         2
            A     defendant          challenging         the    sufficiency     of   the

evidence faces a heavy burden.                     See United States v. Beidler,

110 F.3d 1064, 1067 (4th Cir. 1997).                       “[A]n appellate court’s

reversal of a conviction on grounds of insufficient evidence

should be ‘confined to cases where the prosecution’s failure is

clear.’”     United States v. Jones, 735 F.2d 785, 791 (4th Cir.

1984).     In reviewing a sufficiency challenge, “[t]he verdict of

a   jury   must    be   sustained        if    there     is    substantial    evidence,

taking the view most favorable to the Government, to support

it.”     Glasser v. United States, 315 U.S. 60, 80 (1942).                           This

court “ha[s] defined ‘substantial evidence,’ in the context of a

criminal action, as that evidence which ‘a reasonable finder of

fact   could      accept      as    adequate       and   sufficient     to    support   a

conclusion of a defendant’s guilt beyond a reasonable doubt.’”

United States v. Newsome, 322 F.3d 328, 333 (4th Cir. 2003).

            Where       the        evidence       supports      differing     reasonable

interpretations, the jury will decide which interpretation to

believe.     United States v. Wilson, 118 F.3d 228, 234 (4th Cir.

1997).     Furthermore, “[t]he Supreme Court has admonished that we

not examine evidence in a piecemeal fashion, but consider it in

cumulative context.”           United States v. Burgos, 94 F.3d 849, 863

(4th Cir. 1996).           “The focus of appellate review, therefore, of

the sufficiency of evidence to support a conviction is on the

complete    picture,       viewed      in     context     and    in   the    light   most

                                              3
favorable      to     the    Government,        that   all     of    the    evidence

portrayed.”     Id.

            Johnson’s assertion that Melvin was a mere facilitator

and, thus, could not be a conspirator is without merit.                            This

court held in Burgos that “a variety of conduct, apart from

selling narcotics, can constitute participation in a conspiracy

sufficient to sustain a conviction,” such as supplying firearms,

purchasing      money       orders    for       co-conspirators,      or    allowing

co-conspirators to store narcotics or other contraband in one's

home.    Burgos, 94 F.3d at 859.                We conclude that facilitating

the sale of drugs falls into the above category.                     Even if Melvin

never intended to possess the drugs or distribute drugs himself,

the evidence showed that he conspired with Cleve for Cleve to

possess and distribute cocaine.

            Moreover, the evidence could suggest that Melvin was

more than a mere facilitator.               Melvin and Cleve had an ongoing

methamphetamine        “fronting”     relationship       whereby      Melvin       sold

methamphetamine and paid Cleve with the proceeds.                     In addition,

Melvin was Cleve’s “go-between.”                  The Government informant in

this    case   negotiated       the   planned       purchase    of    a    pound     of

methamphetamine with Melvin, not Cleve, as the informant was not

able to talk to Cleve directly.                 In addition, Melvin was to be

paid for the pound deal that he set up, so he had a vested

interest in completing the deal and assisting Cleve in obtaining

                                            4
methamphetamine for distribution.                  Based on the foregoing, we

find    that    the     evidence     was    sufficient         to    support      Cleve’s

conspiracy conviction.



                                           II.

              Johnson       next     asserts       that        the        evidence       was

insufficient to support his conviction for attempting to possess

with intent to distribute methamphetamine because (1) both the

methamphetamine and the seller were imaginary (set up by the

Government) and (2) any agreement was dependent on Johnson’s

inspection of the methamphetamine which did not (and could not)

happen.

              “An attempt to commit a crime, which is recognized as

a   crime     distinct      from    the    crime   intended          by    the   attempt,

punishes conduct that puts in motion events that would, from the

defendant’s point of view, result in the commission of a crime

but for some intervening circumstance.”                   United States v. Pratt,

351    F.3d    131,   135    (4th   Cir.    2003).        In    order      to    prove    an

attempt, the Government must establish that:

       (1) the defendant had the requisite intent to commit a
       crime; (2) the defendant undertook a direct act in a
       course of conduct planned to culminate in his
       commission of the crime; (3) the act was substantial,
       in   that  it   was  strongly  corroborative   of  the
       defendant’s criminal purpose; and (4) the act fell
       short of the commission of the intended crime due to
       intervening circumstances.


                                            5
Id.

                Mere    preparation       is       insufficient       to    establish     an

attempt.        United States v. Sutton, 961 F.2d 476, 478 (4th Cir.

1992).      However, the defendant need not commit the last act

necessary before the actual commission of the substantive crime

to    be   guilty      of   an    attempt.         Id.      Whether    a   defendant     has

engaged     in     a    substantial      act       beyond     mere    preparation    is   a

factual question.              Pratt, 351 F.3d at 136.               Facts that strongly

corroborate a defendant’s criminal purpose and may constitute a

substantial        step     toward     commission        of   the     substantive    crime

include:     (1)       lying     in   wait,   searching       for,    or   following     the

contemplated victim; (2) reconnoitering the place contemplated

for the commission of the crime; (3) possession of materials to

be employed in the commission of a crime; and (4) possession or

fabrication of materials to be used in the commission of the

crime, at or near the place contemplated for its commission.

Id. at 135.         Factual impossibility is not a defense to a charge

of attempt.            See United States v. Partida, 385 F.3d 546, 560

(5th Cir. 2004).

                The evidence presented at trial, viewed in the light

most favorable to the Government, establishes that Johnson was

guilty     of    attempt.         Johnson      negotiated      a     set   price   for   the

methamphetamine, through Melvin and the informant, and indicated

his intent to purchase the drugs, both before the intended buy

                                               6
and after.         He procured the cash and went with Melvin to the

informant’s        residence   to    contact     the   supplier     (a    Government

agent).       The meeting was arranged, and Johnson drove to the

appointed place with cash in hand.                Before he could make it to

his destination, Government agents stopped him and seized the

money.        This    evidence      was   sufficient     to     support   Johnson’s

attempt conviction.          See United States v. Scott, 767 F.2d 1308,

1312       (9th    Cir.    1985)    (upholding     attempt      conviction    where

defendant         called   seller     expressing       interest    in     purchasing

cocaine and brought money to agreed upon place of sale); United

States v. Williams, 704 F.2d 315, 321 (6th Cir. 1983) (affirming

conviction         where    defendant      inquired      into     possibility    of

purchasing cocaine and arrived at seller’s house with funds). 2


       2
       Johnson cites United States v. Joyce, 693 F.2d 838 (8th
Cir. 1982), in support of his contention that his actions did
not constitute a substantial step.     In Joyce, the defendant
traveled from Oklahoma to Missouri for the purpose of obtaining
cocaine. When he met with the dealers — Government agents
involved in a reverse sting operation — he asked to see the
cocaine. After some discussion regarding prices, the Government
officers retrieved the cocaine from another location and handed
to it Joyce in a plastic package wrapped with duct-tape. Joyce
asked the agents to open the package so that he could examine
the cocaine.   The officers refused to open the package until
Joyce showed them the cash he intended to use to purchase the
drug. After a heated discussion, Joyce stated that he would not
deal with the agents, and he left. He was then arrested. Id.
at 840.

     The Eighth Circuit found these facts insufficient to
demonstrate a substantial step towards the completion of the
offense,   reasoning that  Joyce,  despite having   both the
(Continued)
                                           7
                              III.

          Johnson next asserts that the district court erred in

failing to remove a sleeping juror.   Because this issue was not

raised in district court, we review for plain error.    See Fed.

R. Crim. P. 52(b).   In United States v. Freitag, 230 F.3d 1019

(7th Cir. 2000), the Seventh Circuit discussed the standard for

addressing the issue of sleeping or dozing jurors:

     If sleep by a juror makes it impossible for that juror
     to perform his or her duties or would otherwise deny
     the defendant a fair trial, the sleeping juror should
     be removed from the jury. See United States v.
     Kimberlin, 805 F.2d 210, 244 (7th Cir. 1986); United
     States v. Bradley, 173 F.3d 225, 230 (3d Cir. 1999);
     United States v. Springfield, 829 F.2d 860, 864 (9th
     Cir. 1987). However, a court is not invariably
     required to remove sleeping jurors, Springfield, 829
     F.2d at 864, and a court has considerable discretion
     in deciding how to handle a sleeping juror, United
     States v. Wilcox, 50 F.3d 600, 603 (8th Cir. 1995).
     Reversal is appropriate only if the defendant was



opportunity and ability to purchase the drugs, unambiguously
refused to do so.   See id. at 841-42.   A later Eighth Circuit
case explains that part of the rationale underlying this opinion
was the fact that Joyce, rather than the Government agents,
terminated the events leading up to the sale.         See United
States v. Burks, 135 F.3d 582, 584 (8th Cir. 1998).      Applying
this rationale to Johnson’s case, we conclude that it is
distinguishable from Joyce.    While Johnson did state that he
wanted to examine the drugs prior to purchase, it was the
officers who interrupted the proceedings by stopping Johnson and
seizing his money.    Rather than terminating the transaction,
Johnson was driving to the location of the deal with the
agreed-upon funds when police stopped his car.    Further, after
the deal was aborted, Johnson continued to deal with the
informant and the Government agent in an attempt to purchase
methamphetamine.



                                8
     deprived of his Fifth Amendment due process rights or
     his Sixth Amendment right to an impartial jury.
     Springfield, 829 F.2d at 864.

Freitag, 230 F.3d at 1023.

            Here,     there    is    no    evidence    that   the     juror    was

sleeping.     At worst, the record reflects that the juror was

tired and perhaps inattentive for an undefined period of time

during the Defense’s opening argument and the informant’s direct

testimony.        In addition, once the court noticed the juror, the

court took a momentary break and instructed the jury on the

importance of being alert.           Absent any evidence that the juror

was unable to consider the case fairly, Johnson has failed to

show error, much less plain error.



                                          IV.

            Finally, Johnson claims that methamphetamine offenses

are treated more harshly than powder cocaine offenses, resulting

in   a   violation      of     the   Equal      Protection    Clause     because

methamphetamine offenses are more often than not committed by

Caucasians.       Because Johnson did not raise an objection on this

basis below, his claim is reviewed for plain error.                   As Johnson

presents     no     evidence    or    legal      authority    supporting       the

conclusion    that     (1)     Caucasians       are   unequally     impacted   by

methamphetamine sentencing statutes or (2) that any inequality




                                          9
is not justified based on variables specific to methamphetamine

offenses, he has failed to show error, much less plain error.

            Accordingly,      we   affirm    Johnson’s        convictions    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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