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

                                                FILED
                                                                 May 20, 2009
                                No. 08-50803
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

CALVIN RAY DAVIS

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                           USDC No. 7:08-CR-48-2


Before DAVIS, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
      Calvin Ray Davis was convicted by a jury of one count of aiding and
abetting the possession of 50 grams or more of crack cocaine with the intent to
distribute, in violation of 21 U.S.C. § 841 and 18 U.S.C. § 2. The jury acquitted
him of aiding and abetting the possession of 500 grams or more of cocaine with
the intent to distribute. The district court sentenced him to the mandatory term




      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                  No. 08-50803

of life in prison required by § 841(b)(1)(A). Davis now appeals his conviction and
sentence.
      Davis first challenges the Government’s use of a peremptory challenge to
excuse Juror Menefield, the only African-American member of the venire from
the jury, arguing that it violated his constitutional rights in light of Batson v.
Kentucky, 476 U.S. 79 (1986), which set out a three-step burden-shifting scheme
for analyzing claims of discrimination in jury selection. We review the district
court’s Batson determination for clear error. See United States v. Williams, 264
F.3d 561, 571 (5th Cir. 2001). As there is no dispute that Davis satisfied his
prima facie burden at Batson’s first step, we look to whether the Government
gave race-neutral reasons for excluding the juror and whether those reasons
were a pretext for discrimination. See United States v. Brown, 553 F.3d 768, 796
(5th Cir. 2008).
      The Government offered several race-neutral reasons for excluding Juror
Menefield. First, she had a brother who had served time in prison for a drug
offense. Although two white jurors, Juror Gallegos and Juror Simmons, also had
relatives with prior drug offenses, they also had family members in law
enforcement.   In addition, contrary to Davis’s argument, both these jurors
viewed their relatives’ experiences positively, stating that their relatives were
better persons. Juror Simmons further stated that he was a strong supporter
of the judicial system. In addition, Juror Menefield knew a key Government
witness, Deyna Griffith, from church, a valid reason for exclusion.           The
Government also excluded two white jurors who had relatives with criminal
histories. Given the foregoing factors, the Government satisfied its minimal
burden of providing race-neutral explanations, and we find no clear error in the
district court’s ultimate determination that the strike of Juror Menefield was not
motivated by improper racial considerations. See Williams, 264 F.3d at 572; see
also Haynes v. Quarterman, 526 F.3d 189, 201 (5th Cir. 2008) (discussing
comparison of juror qualities).

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      Davis next argues that the district court erred by substituting an alternate
juror for a juror who disclosed, after jury selection had been completed, that her
nephew was in prison for a federal drug offense. A district court may empanel
alternate jurors to replace any jurors “who are unable to perform or who are
disqualified from performing their duties.” F ED. R. C RIM. P. 24(c)(1). We will not
disturb the district court’s exercise of its discretion to remove a juror who is
unable to perform her duties absent a finding that it prejudiced a party. United
States v. Huntress, 956 F.2d 1309, 1312 (5th Cir. 1992). The district court did
not abuse its discretion here. The replaced juror’s nephew was a friend of the
juror’s son and was being prosecuted by the same United States Attorney’s office
that was prosecuting Davis.       Further, the nephew’s family had exhibited
significant displeasure towards the prosecution. Additionally, the nephew’s
counsel was assisted by the partner of Davis’s counsel. In light of those facts,
the district court did not dismiss the juror without factual basis or for a legally
irrelevant reason; thus, we find no abuse of discretion. See Huntress, 956 F.2d
at 1312.
      Davis next argues that the evidence was insufficient to demonstrate his
guilt. Because Davis preserved his sufficiency challenge, we review to determine
whether, “viewing the evidence in the light most favorable to the verdict and
drawing all reasonable inferences from the evidence in support of the verdict, a
rational trier of fact could have found that the evidence established the essential
elements of the offense beyond a reasonable doubt.” United States v. Ferguson,
211 F.3d 878, 882 (5th Cir. 2000).
      There is no question that the Government demonstrated the elements of
the underlying offense of possession of crack cocaine with intent to distribute.
We conclude that the evidence also satisfied the elements of aiding and abetting.
See United States v. McDowell, 498 F.3d 308, 313 (5th Cir. 2007). In particular,
the testimony of Deyna Griffith and Joseph Sarabia, in combination with the
evidence of crack distribution recovered from the kitchen of the apartment where

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Davis was arrested, supports the jury’s verdict. Despite Davis’s challenges to
Griffith’s motivation and his own testimony disputing the assertions by Griffith
and Sarabia, we see nothing in the record that would warrant disturbing the
jury’s credibility determinations. See United States v. Garcia, 995 F.2d 556, 561
(5th Cir. 1993); United States v. McKenzie, 768 F.2d 602, 605 (5th Cir. 1985). In
addition, the lack of physical evidence, such as fingerprints, linking Davis to the
drugs does not negate the testimony supporting the jury’s finding. We also reject
his passing assertion that the acquittal on the powder cocaine count
demonstrates the lack of sufficiency on the crack cocaine count, particularly
given the evidence that Davis sold crack rather than powder cocaine. See, e.g.,
United States v. Parks, 68 F.3d 860, 865 (5th Cir. 1995).
      Finally, Davis contends that his mandatory life sentence violates the
Eighth Amendment. As Davis effectively concedes, this argument is without
merit. See United States v. Fisher, 22 F.3d 574, 579-80 (5th Cir. 1994); United
States v. Fragoso, 978 F.2d 896, 903 (5th Cir. 1992).
      The judgment of the district court is AFFIRMED.




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