UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-16

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

SAMUEL MANNING,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Newport News. Jerome B. Friedman, District Judge. (4:07-cr-00081-JBF-JEB-2)

Argued: December 3, 2009 Decided: January 21, 2010

Before WILKINSON, SHEDD, and AGEE, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ARGUED: Jon Michael Babineau, RIDDICK BABINEAU, PC, Suffolk, Virginia; Lawrence Hunter Woodward, Jr., SHUTTLEWORTH, RULOFF, SWAIN, HADDAD & MORECOCK, PC, Virginia Beach, Virginia, for Appellant. Brian James Samuels, OFFICE OF THE UNITED STATES ATTORNEY, Newport News, Virginia, for Appellee. ON BRIEF: Dana J. Boente, United States Attorney, Alexandria, Virginia; Eric M. Hurt, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Newport News, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

The question in this case is whether a superseding

indictment for Samuel Manning’s involvement in a drug conspiracy

violates the Double Jeopardy Clause because of his prior

conviction for participating in a separately charged drug

conspiracy. The district court determined by a preponderance of

the evidence that these two conspiracies were separate and

distinct and held accordingly that the government was not barred

from prosecuting him in this case. We review the district

court’s factual finding for clear error. United States v. McHan,

(4th Cir. 1992).

On September 11, 2006, a grand jury returned an indictment

charging Manning and four co-defendants with, among other

things, conspiring to distribute cocaine, cocaine base, and

heroin under the leadership of Kasine Powers (the “Powers

Conspiracy”). On November 9, 2006, Manning pled guilty to the

conspiracy charge and a related count and was subsequently

sentenced to 120 months imprisonment.

On August 14, 2007, a grand jury returned a superseding

indictment charging Manning with, among other things, conspiring

to distribute cocaine base with Donald Smith (the “Smith

Conspiracy”). Manning filed a motion to dismiss the superseding

indictment on Double Jeopardy grounds. Following an evidentiary

hearing, the district court denied the motion. This

2 interlocutory appeal followed pursuant to Abney v. United

States,

(1977).

The district court applied this court’s precedent in

United States v. Ragins,

(4th Cir. 1998)

to the letter -- determining whether the two conspiracies were

in fact the same conspiracy under the totality of the

circumstances. In the court’s view, Manning made a non-

frivolous showing that the two conspiracies were the same: the

time periods of the two conspiracies overlapped, both

conspiracies occurred in Newport News, Virginia, and both

involved cocaine base. But the court ultimately determined that

the two conspiracies were separate by a preponderance of the

evidence. It emphasized four factors. First, the participants

in the two conspiracies were, apart from Manning, unique.

Second, Manning’s personal involvement in the Powers Conspiracy

dealt with heroin, but his involvement in the Smith Conspiracy

dealt with cocaine base. Third, Manning’s participation in the

Smith Conspiracy predated his involvement in the Powers

Conspiracy. Fourth, the two conspiracies differed in scope and

organization; while the Smith Conspiracy was simply an agreement

between Manning and Smith to distribute cocaine base, the Powers

Conspiracy consisted of a large network of individuals who

distributed various drugs for Kasine Powers.

3 In light of these factors, it was not clear error for the

district court to find that the two conspiracies were separate

and distinct. Accordingly, the judgment of the district court

is

AFFIRMED.

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