Opinion
No. 09-2898.
Submitted: March 25, 2010.
Filed: March 30, 2010.
Appeal from the United States District Court for the District of Nebraska.
John Higgins, U.S. Attorney's Office, District of Nebraska, Omaha, NE, for Appellee.
James Robert Kozel, Omaha, NE, for Appellant.
Torone Russell, Leavenworth, KS, pro se.
Before WOLLMAN, COLLOTON, and GRUENDER, Circuit Judges.
[UNPUBLISHED]
Torone Russell appeals the judgment of the district court entered upon a jury verdict finding him guilty of conspiring to distribute and possess with intent to distribute 5 grams or more of a mixture or substance containing a detectable amount of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1) and 846, and 18 U.S.C. § 2 (Count I), and possessing with intent to distribute 5 grams or more of cocaine base on August 21, 2008, and an unspecified amount of cocaine base on August 27, 2008, in violation of 21 U.S.C. § 841(a)(1), (b)(1) and 18 U.S.C. § 2 (Counts II and IV). The district court sentenced Russell to concurrent terms of 70 months in prison on all three counts, and 4 years of supervised release on Counts I and II, with a concurrent 3-year term of supervised release on Count IV. On appeal, defense counsel has filed a brief under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), challenging the sufficiency of the evidence to support the verdict.
The Honorable Laurie Smith Camp, United States District Judge for the District of Nebraska.
Following de novo review, considering the facts and resolving evidentiary conflicts in the light most favorable to the verdict, see United States v. Lewis, 593 F.3d 765, 769-70 (8th Cir. 2010), we conclude that the evidence was sufficient. The trial included the testimony of cooperating witness Kenneth Jones that he twice sold distribution quantities of cocaine base to Joseph Jordan and Russell. In addition, cooperating witness Talanda Penn — who testified that she twice obtained cocaine base for Jordan, her fiancé — identified Russell's voice on audio recordings of telephone conversations on August 21 and 27, 2008, involving transactions related to distribution quantities of cocaine base. This evidence, along with police surveillance and wiretap evidence related to a broader cocaine base distribution ring, was sufficient for a reasonable jury to find beyond a reasonable doubt that Russell was guilty of the offenses charged in the indictment. See United States v. Parker, 587 F.3d 871, 880-81 (8th Cir. 2009) (elements of conspiracy and possession-with-intent-to-distribute offenses); United States v. Coleman, 584 F.3d 1121, 1125 (8th Cir. 2009) (reviewing court does not weigh evidence or assess witness credibility), cert. denied, ___ U.S. ___, 130 S.Ct. 1752, 176 L.Ed.2d 222 (2010).
Having reviewed the record independently under Penson v. Ohio, 488 U.S. 75, 80, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), we have found no nonfrivolous issues. Accordingly, the judgment is affirmed. We also grant counsel's motion to withdraw.