     Case: 10-50445 Document: 00511388403 Page: 1 Date Filed: 02/21/2011




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

                                                 FILED
                                                                          February 21, 2011
                                     No. 10-50445
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

MICHAEL DION ACREY,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 7:09-CR-113-3


Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Michael Dion Acrey appeals his conviction of conspiracy to possess with
the intent to distribute a controlled substance, crack cocaine, and of using a
juvenile to commit a drug offense. After the jury found Acrey guilty of these two
offenses, the district court sentenced Acrey to concurrent 135-month terms of
imprisonment, five and eight year concurrent terms of supervised release, and
a $200 special assessment.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
    Case: 10-50445 Document: 00511388403 Page: 2 Date Filed: 02/21/2011

                                 No. 10-50445

      Acrey argues that the evidence was insufficient to support either of his
convictions. He contends that the evidence gave nearly equal circumstantial
support to a theory of innocence and, that to reach his convictions, the jury
unduly piled inference upon inference.
      The jury was free to infer the existence of a conspiracy based on the
testimony it heard from Natesha Ennis that the sale to Acrey was a consignment
sale; to conclude that the purchases about which they heard testimony were for
distribution based on the total amount of crack involved, the expert’s testimony
regarding distribution quantities, and the testimony that Acrey purchased a
large quantity of crack twice in only two days; and to credit the consistent
testimony of the juvenile and Ennis over that of Acrey. See United States v.
Garcia, 567 F.3d 721, 732 (5th Cir.), cert. denied, 130 S. Ct. 303 (2009); United
States v. Mata, 491 F.3d 237, 242 (5th Cir. 2007); United States v. Posada-Rios,
158 F.3d 832, 860 (5th Cir. 1998). There was also ample evidence presented to
the jury, through the testimony of the juvenile himself, that Acrey hired, used,
or employed a juvenile to violate a federal narcotics law. See United States v.
Lombardi, 138 F.3d 559, 562 (5th Cir. 1998). Because any reasonable trier of
fact could conclude from the evidence presented at Acrey’s trial that the
elements of the offenses were established beyond a reasonable doubt, we uphold
the jury’s verdict. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); United
States v. Mendoza, 226 F.3d 340, 343 (5th Cir. 2000).
      Acrey also argues that the district court erred when it allowed the
introduction of evidence of Acrey’s prior drug activity. Acrey concedes that the
evidence he challenges was relevant to his intent. See United States v. Thomas,
348 F.3d 78, 86 (5th Cir. 2003). However, he argues that the admission of this
evidence was an abuse of discretion because it was more prejudicial than
probative.
      “We consistently have held that evidence of a defendant’s prior conviction
for a similar crime is more probative than prejudicial and that any prejudicial

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                                    No. 10-50445

effect may be minimized by a proper jury instruction.” United States v. Taylor,
210 F.3d 311, 318 (5th Cir. 2000). This is equally true of uncharged drug
activity. See United States v. Harris, 932 F.2d 1529, 1534 (5th Cir. 1991); United
States v. Beechum, 582 F.2d 898, 914 n.17, 915 n.20, (5th Cir. 1978) (en banc).
Further, the district court instructed the jury of the limited purposes for which
the evidence was admitted. Acrey has not demonstrated that admission of the
evidence of his prior drug activity was an abuse of the district court’s discretion,
even under the heightened standard of review. See United States v. Buchanan,
70 F.3d 818, 831 (5th Cir. 1995).
      Acrey last argues that the district court erroneously denied his motion to
suppress the evidence based on his unlawful stop and detention. Acrey admits
that his attorney “has not found any authority to argue that the stop in this case
was unreasonable” and concedes that he voluntarily consented to the search of
his vehicle. Rather, he contends merely that since he preserved this point of
error in the district court, it was included in his brief. However, because Acrey
has pointed to no error with respect to the district court’s ruling on his motion
to suppress, it is the same as if he had not appealed this issue, and the issue is
considered abandoned. See Brinkmann v. Dallas County Deputy Sheriff Abner,
813 F.2d 744, 748 (5th Cir. 1987).
      The judgment of the district court is AFFIRMED.




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