IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-40844 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MIKE SMITH, JR.; ROBERT LEE GEORGE,

Defendants-Appellants.

-------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 1:98-CR-108-2 -------------------- May 31, 2000

Before DAVIS, EMILIO M. GARZA and DENNIS, Circuit Judges.

PER CURIAM:*

Robert Lee George, Jr., appeals his jury-trial convictions

for conspiracy to distribute cocaine and possession with the

intent to distribute cocaine. George’s codefendant, Mike Smith,

Jr., appeals his jury-trial conviction for conspiracy to

distribute cocaine. Smith also appeals the life sentence imposed

by the district court after his conviction.

Neither appellant renewed their motions for judgments of

acquittal at the close of all of the evidence. Thus, their

challenges to the sufficiency of the evidence are reviewed for

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 99-40844 -2-

plain error only. See United States v. McCarty,

(5th Cir. 1994). A conviction may be reversed under the

plain-error standard only to avoid a “manifest miscarriage of

justice.” United States v. Parker,

(5th Cir.

1998).

The evidence adduced at trial established that Smith

negotiated the terms and arranged the transaction of July 22,

1999. He then exchanged crack cocaine - which he himself claimed

was from George - for money, and gave a portion of the money to

George. The evidence thus established that Smith and George

conspired together to violate the narcotics laws. See United

States v. Smith,

(5th Cir. 2000).

The evidence also established that George possessed crack

cocaine with the intent to distribute it. The Government

presented tape-recorded evidence wherein Smith attributed the

cocaine to George. In addition, George had possession of

currency given to complete the transaction when he was arrested.

Based on such, a jury could reasonably have inferred either that

George had actual possession of the crack before it was

distributed, or that George had constructive possession of the

crack. See United States v. Cardenas,

(5th

Cir. 1993).

Smith’s due-process challenge to the Sentencing Guidelines

has been rejected not only by this court, but by the Supreme

Court. See Mistretta v. United States,

(1989);

United States v. Guajardo,

(5th Cir. 1991.)

His equal-protection argument also fails. Cf. Harris v. Johnson, No. 99-40844 -3-

(5th Cir. 1996). Smith contends that the

district court erred in attributing crack cocaine to him based on

assertions made by an admitted drug dealer. However, Smith fails

to demonstrate that the district court’s credibility

determination was clearly erroneous. See United States v. Vital,

(5th Cir. 1995).

AFFIRMED.