UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                     No. 98-4443

AHMED YOUNG, a/k/a Touche,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
T. S. Ellis, III, District Judge.
(CR-97-404)

Submitted: May 28, 1999

Decided: June 18, 1999

Before WIDENER, MICHAEL, and MOTZ, Circuit Judges.

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Affirmed in part and dismissed in part by unpublished per curiam
opinion.

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COUNSEL

Larry C. Brown, Jr., LARRY C. BROWN JR., P.C., Alexandria, Vir-
ginia, for Appellant. Helen F. Fahey, United States Attorney, LeDora
Knight, Assistant United States Attorney, Alexandria, Virginia, for
Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

Ahmed Young was convicted by a jury of distributing crack
cocaine to an undercover officer in Fairfax County, Virginia, in
December 1995, see 21 U.S.C. § 841(a) (1994),* and sentenced to a
term of 121 months imprisonment. Young appeals his conviction,
alleging that the district court should have granted his motion to dis-
miss the prosecution and set aside his conviction on grounds of vin-
dictive prosecution. He also appeals his sentence, contending that the
district court clearly erred in finding that he obstructed justice by
committing perjury at trial, see U.S. Sentencing Guidelines Manual
§ 3C1.1 (1997), and erred in deciding not to depart on various
grounds. We affirm in part and dismiss in part.

At Young's trial, the undercover officer testified that he bought
crack from Young on December 7, 1995. Robert Coleman and Jessie
Fields, who were both serving federal sentences for drug trafficking,
testified about prior crack transactions they had engaged in with
Young. Over Young's objection, the district court considered those
amounts of crack as well as the amount sold to the undercover officer
in calculating Young's sentence, finding that they were part of the
same course of conduct. See USSG § 1B1.3(a)(2). The factors to be
considered in determining whether prior conduct is part of the same
course of conduct as the offense of conviction are the similarity and
regularity of the offenses, as well as the time interval between the
prior conduct and the instant offense. See id. , comment. (n.9(B)). The
court found that the regularity and similarity of the offenses was
strong because the offenses were essentially identical (sales of crack
to street dealers along the Richmond Highway and purchases of more
_________________________________________________________________
*This charge was originally Count 3 of the indictment, but was rela-
beled Count 2 after the original Count 2 was dismissed. Young was
acquitted of Count 1.

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crack to sell to those dealers) and that there were numerous repeti-
tions of the offenses. The court found that Young's activities were
part of an ongoing series of offenses and that a total of 98.07 grams
of crack were properly attributed to him. We find that the court's
finding was not clearly erroneous.

Next, Young contests the district court denial of his motion to dis-
miss for vindictive prosecution based on: (1) his acquittal in state
court on similar drug charges before he was federally indicted, and (2)
the fact that the others arrested about the same time as he all entered
guilty pleas in state court and were not federally prosecuted. It is a
violation of due process to punish a defendant for successfully attack-
ing his criminal conviction. See United States v. Williams, 47 F.3d
658, 660 (4th Cir. 1995) (citing Bordenkircher v. Hayes, 434 U.S.
357, 368 (1978)). However, when a defendant alleges vindictive pros-
ecution, he must make "a threshold showing of vindictiveness or the
likelihood of it before the court is justified in inquiring into the prose-
cutor's actual motives." United States v. Gallegos-Curiel, 681 F.2d
1164, 1169 (9th Cir. 1982). The prohibition against retaliation or vin-
dictiveness for the exercise of constitutional rights, as well as the
appearance of vindictiveness, forbids a prosecutor from seeking a har-
sher sentence upon retrial, see North Carolina v. Pearce, 395 U.S.
711, 725 (1969), or from reindicting a defendant on more serious
charges after a successful appeal. See Blackledge v. Perry, 417 U.S.
21, 27 (1974).

But "vindictiveness cannot be inferred simply because the prosecu-
tor's actions followed the exercise of a right, or because they would
not have been taken but for exercise of a defense right." Gallegos-
Curiel, 681 F.2d at 1168 (citing United States v. Robison, 644 F.2d
1270, 1273 (9th Cir. 1981)). Moreover, the fact that a second prosecu-
tion is brought by a federal prosecutor, even if the indictment is based
on the same facts as a prior state prosecution,"tends to negate a vin-
dictive prosecution claim." Robison, 644 F.2d at 1273. See also
United States v. Ballester, 763 F.2d 368 (9th Cir. 1985). In this case,
the state and federal investigations had proceeded independently for
several years before Young's arrest. Moreover, several of Young's
associates had already been federally prosecuted. After considering
the circumstances, the district court decided that vindictiveness could

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not be inferred from the federal prosecutor's decision to indict Young.
We find no error in the court's decision.

We review the district court's finding that Young obstructed justice
by giving perjured testimony at trial for clear error. See United States
v. Castner, 50 F.3d 1267, 1279 (4th Cir. 1995). Although Young's
trial testimony is not included in the joint appendix, he does not dis-
pute the district court's finding that he denied any involvement with
drug trafficking and denied selling crack to the undercover officer. On
these facts, we cannot say that the district court clearly erred in mak-
ing the adjustment. Last, Young argues that the district court should
have departed downward because of the increased sentence he
received based on the consideration of drug amounts outside the
offense of conviction despite his prior acquittal in state court on simi-
lar charges. The district court's decision not to depart is not review-
able. See United States v. Brock, 108 F.3d 31, 33 (4th Cir. 1997);
United States v. Bayerle, 898 F.2d 28, 31 (4th Cir. 1990).

We therefore affirm the conviction and the sentence. We dismiss
the portion of the appeal which challenges the district court's decision
not to depart. 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 IN PART, DISMISSED IN PART

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