UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                        No. 96-4063

DAVID RANDALL MOTSINGER,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Greensboro.
N. Carlton Tilley, Jr., District Judge.
(CR-95-113)

Submitted: January 31, 1997

Decided: February 12, 1997

Before HALL and MURNAGHAN, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Paul M. James, STOWERS & JAMES, P.A., Winston-Salem, North
Carolina, for Appellant. Walter C. Holton, Jr., United States Attorney,
Scott P. Mebane, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

David Randall Motsinger appeals from his conviction and sentence
for conspiracy to possess with the intent to distribute marijuana in
violation of 21 U.S.C. § 846(a)(1) (1994). We affirm.

Motsinger's attorney has filed a brief in accordance with Anders v.
California, 386 U.S. 738 (1967), raising five potentially meritorious
issues:

          (1) the district court abused its discretion in denying a
          motion for severance;

          (2) the district court abused its discretion in denying a
          motion for additional peremptory challenges;

          (3) Motsinger's Sixth Amendment right to counsel was
          violated by introduction of statements made to a co-
          defendant while they were confined in the same hold-
          ing cell;

          (4) the district court erroneously denied Motsinger's
          motion for judgment of acquittal under Fed. R. Crim.
          P. 29(c); and

          (5) it was plain error for the district court to fail to
          instruct the jury with regard to multiple versus single
          conspiracies.

Motsinger himself raises an additional five issues:

          (6) he received a sentence disproportionate in severity to
          that of higher ranking individuals within the conspir-
          acy;

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          (7) three witnesses have different recollections of how
          many air compressors were used to conceal an
          alleged shipment of 460 pounds of marijuana;

          (8) although the Government produced paperwork to
          prove another shipment of marijuana, it failed to pro-
          duce any paperwork establishing the existence of the
          460 pound shipment;

          (9) although the Government established the existence of
          phone calls between various members of the conspir-
          acy, it was unable to prove that Motsinger had called
          anyone in the conspiracy other than the "avowed sec-
          ond in command;" and

          (10) although the Government introduced taped conversa-
          tions between the second in command and other con-
          spirators, no tapes between this individual and
          Motsinger were introduced.

With regard to claims (1) and (2), we find no abuse of discretion.
Addressing claim (3), we note that the district court conducted a hear-
ing whereupon it found that the co-conspirator was not acting on
behalf of the Government at the time he was in the holding cell with
Motsinger. We find no clear error in this factual determination, and
therefore, the admission of any statements which Motsinger volun-
teered or the co-conspirator elicited does not constitute a Sixth
Amendment violation. Maine v. Moulton, 474 U.S. 159, 176 (1985)
(stating that "the Sixth Amendment is not violated whenever"by luck
or happenstance"the [Government] obtains incriminating statements
from the accused after the right to counsel has attached").

Turning to claim (4), a denial of a motion for acquittal is reviewed
under a sufficiency of evidence standard. Fed. R. Crim. P. 29; United
States v. Brooks, 957 F.2d 1138, 1147 (4th Cir. 1992). To sustain a
conviction the evidence, when viewed in the light most favorable to
the government, must be sufficient for a rational jury to have found
the essential elements of the crime beyond a reasonable doubt. United
States v. Brewer, 1 F.3d 1430, 1437 (4th Cir. 1993); see Glasser v.
United States, 315 U.S. 60, 80 (1942). A review of the trial transcripts

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reveals ample evidence to support Motsinger's conviction under this
standard. Given this determination, we also find claims (7) through
(10), which amount to no more than a sufficiency of the evidence
challenge, to be meritless.

Addressing claim (5), Motsinger's attorney concedes that because
this issue is raised for the first time on appeal, it is reviewed for plain
error. United States v. Olano, 507 U.S. 725 (1993). Motsinger
explains that much of the evidence against him related to his partici-
pation in the theft of 287 pounds of marijuana from other members
of the conspiracy. He argues that this theft, committed with the help
of two other co-conspirators constituted a second, smaller and
uncharged conspiracy because its goals ran counter to that of the
overall conspiracy. From this premise, he argues that because much
of the evidence presented against him related to the theft, the remain-
ing evidence was insufficient to convict him of the larger, charged
conspiracy and that the jury should have been instructed in single ver-
sus multiple conspiracies so that it would not consider evidence of the
theft in determining his guilt or innocence of the larger charged
offense. Even assuming Motsinger's newly raised theory of a second
conspiracy to be a convincing one, and factoring out all testimony
relating to the 287 pound theft, we find ample evidence to support
Motsinger's conviction for the larger conspiracy and therefore find
that even if the district court's failure to instruct the jury on multiple
versus single conspiracies was erroneous, it did not constitute plain
error as defined in Olano.

Finally, turning to claim (6), we note that any discrepancy between
Motsinger's sentence and that of his higher ranking co-conspirators
may possibly be explained by the fact these individuals either pled
guilty or testified for the Government at the trial of the remaining
conspirators. At any rate, sentencing courts are not required to con-
sider the sentences of co-defendants. United States v. Foutz, 865 F.2d
617, 621 (4th Cir. 1989); see also United States v. Hayes, 589 F.2d
811, 827 (5th Cir. 1979) (stating that appellant"cannot rely upon the
sentences which other defendants receive as any yardstick for his sen-
tence"). Accordingly, we find no error.

Pursuant to Anders, this court has reviewed the record for potential
error and has found none. Therefore, we affirm Motsinger's sentence

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and conviction. This court requires that counsel inform his client, in
writing, of his right to petition the Supreme Court of the United States
for further review. If the client requests that a petition be filed, but
counsel believes that such a petition would be frivolous, then counsel
may move this court for leave to withdraw from representation. Coun-
sel's motion must state that a copy thereof was served on the client.
We deny counsel's pending motion to withdraw and 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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