United States v. Roddrick Anderson ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
August 17, 2005
No. 03-13389 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 02-00435-CR-C-NE
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RODDRICK ANDERSON,
a.k.a. Buster,
WALTER PINCHON,
Defendants-Appellants.
________________________
Appeals from the United States District Court
for the Northern District of Alabama
_________________________
(August 17, 2005)
Before BLACK, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Roddrick Anderson and Walter Pinchon appeal following their convictions
for possession with intent to distribute 5 or more grams of cocaine base, in
violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A), and conspiracy to possess
with intent to distribute 50 or more grams of cocaine base, in violation of
21 U.S.C. §§ 841(a)(1), 841(b)(1)(B) and 846.
Anderson argues that the district court erred in light of United States
v. Booker, 543 U.S. ___, 125 S. Ct. 738 (2005), by treating the United States
Sentencing Guidelines as mandatory. Pinchon argues that the evidence was
insufficient to support his convictions, and that the district court abused its
discretion by denying his motion for a new trial.1 We address the appellants’
arguments in turn.
I. Anderson
As to Anderson’s Booker argument, plain error review applies. United
States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005), cert. denied, (U.S. June
20, 2005) (No. 04-1148). “An appellate court may not correct an error the
defendant failed to raise in the district court unless there is: (1) error, (2) that is
plain, and (3) that affects substantial rights. If all three conditions are met, an
appellate court may then exercise its discretion to notice a forfeited error, but only
if (4) the error seriously affects the fairness, integrity, or public reputation of
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Pinchon also argues, for the first time in his reply brief, that his sentence should be
vacated and remanded in light of Booker. Because Pinchon did not raise this argument in his
initial brief, we decline to review it. See United States v. Silvestri, 409 F.3d 1311, 1338 n. 18
(11th Cir. 2005).
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judicial proceedings.” Id. at 1298 (internal quotations omitted).
As we have noted, there are two types of Booker error: Sixth Amendment
error and statutory error. United States v. Shelton, 400 F.3d 1325, 1300-31
(11th Cir. 2005). Sixth Amendment, or, “constitutional,” Booker error occurs
when a district court uses extra-verdict enhancements to increase a defendant’s
Guidelines range and then treats this range as mandatory. Id. Because the district
court did not use extra-verdict enhancements to increase Anderson’s sentence,
there was no Sixth Amendment error. However, statutory Booker error occurs
every time a district court treats the range as mandatory, regardless of whether it
imposes any extra-verdict enhancements. Id.
Turning to the alleged statutory error, the first prong of the plain error
analysis is satisfied because the district court treated the Sentencing Guidelines as
mandatory. See United States v. Martinez, 407 F.3d 1170, 1173 (11th Cir. 2005).
Similarly, the second prong is fulfilled because it is enough for the error to be clear
at the time of appellate review. Id. The third prong is satisfied because the district
court imposed concurrent sentences of 121 months each, the lowest sentences
permitted by a mandatory reading of the Guidelines, and expressed a desire to
sentence Anderson to a “much lighter sentence” than the Guidelines permitted. See
id. at 1173-74.
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Lastly, we have repeatedly held that the fourth prong is satisfied where a
district court evinced a desire to impose a lower sentence than that permitted by the
Guidelines, but sentenced the defendant within the Guidelines range based upon
the mistaken belief that this range was mandatory. United States v. Henderson,
409 F.3d 1293, 1307-08 (11th Cir. 2005); United States v. Dacus, 408 F.3d 686,
689 (11th Cir. 2005); Martinez, 407 F.3d at 1174; Shelton, 400 F.3d at 1333-34.
We therefore reverse and remand for resentencing as to Anderson.
II. Pinchon
A. Sufficiency of the evidence
As to Pinchon’s argument that there was insufficient evidence to support his
convictions, we review “challenges to the sufficiency of the evidence de novo,
viewing the evidence in the light most favorable to the government.” United States
v. Futrell, 209 F.3d 1286, 1288 (11th Cir. 2000). The jury has the exclusive power
to determine the credibility of witnesses. United States v. Chastain, 198 F.3d
1338, 1351 (11th Cir. 1999)
“In order to obtain a conviction under 21 U.S.C. § 841(a)(1), the
Government must establish the existence of three elements: (1) knowledge (of
one's possession); (2) possession of a controlled substance; and (3) intent to
distribute that substance.” United States v. Wilson, 183 F.3d 1291, 1299 n. 13
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(11th Cir. 1999). To obtain a conviction under 21 U.S.C. § 846, the government
must “show (1) the existence of an agreement, (2) an overt act in furtherance of the
conspiracy, (3) possession, (4) intent to distribute, and (5) a controlled substance.”
United States v. Boldin, 772 F.2d 719, 727 (11th Cir. 1985).
In the instant case, the government presented a videotape depicting the drug
transaction that resulted in Pinchon’s convictions. On appeal, Pinchon and the
government make contrary arguments about whether the seller’s identity could be
ascertained from this tape. But it was within the province of the jury, after
reviewing the videotape itself, to accept the government’s version and reject
Pinchon’s. Even assuming that the videotape did not establish Pinchon’s guilt,
however, the trial testimony alone was sufficient to support knowing possession
with intent to distribute under § 841, conspiracy under § 846, and a guilty verdict.
Because the government presented testimony that, if credited, would justify
Pinchon’s convictions, the evidence was sufficient to justify the jury’s guilty
verdict. Chastain, 198 F.3d at 1351.
B. Motion for a new trial
As to Pinchon’s argument that the district court erred by denying his motion
for a new trial, we review the denial for an abuse of discretion. United States v.
Ettinger, 344 F.3d 1149, 1161 (11th Cir. 2003).
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A defendant must meet five requirements to be entitled to a new trial based
upon newly discovered evidence:
(1) the evidence must be discovered following trial;
(2) the movant must show due diligence to discover the
evidence; (3) the evidence must not be merely cumulative
or impeaching; (4) the evidence must be material to
issues before the court; and (5) the evidence must be of
such a nature that a new trial would probably produce a
new result.
United States v. Di Bernardo, 880 F.2d 1216, 1224 (11th Cir. 1989).
Pinchon cannot satisfy the first requirement for obtaining a new trial because
he claims to have discovered the new evidence, i.e., that two witnesses were
associating, during the trial. Because the evidence upon which Pinchon relies was
not discovered “following trial,” he has not met the first requirement for obtaining
a new trial, and the district court did not abuse its discretion by failing to grant his
motion. We therefore affirm Pinchon’s convictions.
AFFIRMED IN PART; VACATED AND REMANDED IN PART.
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