United States v. Anthony Hopson ( 2011 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 10-1234
_____________
UNITED STATES OF AMERICA
v.
ANTHONY HOPSON,
Appellant
Appeal from the United States District Court
for the Western District of Pennsylvania
(Crim. No. 2-08-cr-00216-001)
District Judge: Hon. Alan N. Bloch
Submitted Pursuant to Third Circuit LAR 34.1(a)
January 24, 2011
Before: McKEE, Chief Judge, SMITH, Circuit Judge and
STEARNS,∗ District Judge
(Opinion Filed: February 11, 2011)
McKEE, Chief Judge.
Anthony Hopson appeals the district court’s order of judgment of conviction and
sentence. For the reasons that follow, we will affirm.
I. BACKGROUND1
∗ Honorable Richard G. Stearns, District Court Judge, United States District Court for the
District of Massachusetts, sitting by designation.
Hopson raises four arguments on appeal. He claims that: (1) the district court
violated his Fifth Amendment right not to testify when it instructed the jury that it could
consider “any statements omitted by the defendant”; (2) the evidence was insufficient to
convict; (3) the unavailability of the government’s confidential informant violated his
Sixth Amendment right to confront witnesses; and (4) the district court was unreasonable
in finding that he did not qualify as a career offender yet then varying upward based upon
career offender factors. We have jurisdiction pursuant to 28 U.S.C. § 1291.We review the
district court’s decision regarding jury instructions for abuse of discretion. We “order a
new trial on account of a district court’s refusal to give a proposed jury instruction ‘only
when the requested instruction was correct, not substantially covered by the instructions
given, and was so consequential that the refusal to give the instruction was prejudicial to
the defendant.’ ” United States v. Hoffecker, 530 F.3d 137, 167 (3d Cir. 2008).
Challenges to the sufficiency of the evidence place “a very heavy burden” on an
appellant. United States v. Gonzalez, 918 F.2d 1129, 1132 (3d Cir. 1990) (citations and
internal quotation marks omitted). In reviewing such challenges, we view all of the
evidence on the record “in the light most favorable to the prosecution to determine whether
any rational trier of fact could have found proof of guilt[] beyond a reasonable doubt based
on the available evidence.” United States v. Brodie, 403 F.3d 123, 133 (3d Cir. 2005)
(citations and internal quotation marks omitted).
Finally, absent legal error, we review a sentence for reasonableness to ensure that it
1
We write primarily for the parties and therefore will only set forth those facts that are
helpful to our brief discussion of the issues.
was both procedurally sound and substantively reasonable. United States v. Wise, 515
F.3d 207, 217-18 (3d Cir. 2008).
II. ANALYSIS
A. Hopson’s Fifth Amendment Right Not to Testify
Hopson contends that the district court instructed the jury that it could consider his
decision not to testify as evidence of guilt, and that these instructions constituted re versible
error. The district court defined the phrase “intent to distribute,” and explained that a jury
“may infer a defendant’s intent from all of the surrounding circumstances,” including “any
statements made or omitted by the Defendant.” Hopsons’s counsel objected to this
portion of the district court’s instruction and argued that it violated the Fifth Amendment
right against self-incrimination. The district court overruled the objection.
Hopson’s argument is undermined by the fact that the district court explicitly
instructed the jury that “the defendant had an absolute right not to testify or offer
evidence.” The court also explained that the government had the burden to prove the
defendant guilty, and that the law never imposed on a defendant in a criminal case the
burden of calling any witnesses or producing any evidence. The court emphasized that a
defendant’s decision not to testify or offer any evidence should not be considered or
discussed in deliberations.
In addition, we have previously approved jury instructions similar to the one used
here. See United States v. Garrett, 574 F.2d 778, 783 (3d Cir. 1978). Accordingly, we
conclude that the district court did not abuse its discretion in instructing the jury as it did.
B. Sufficiency of the Evidence
Next, Hopson argues that the evidence was not sufficient to support his conviction
for Counts I and II (distribution of heroin). He rests that argument on the fact that there
were no witnesses to the buys, no tape recordings, video recordings or photographs of the
buys, and that the heroin found had no fingerprints or other evidence connecting Hopson to
the illegal drugs.
Accordingly, we must determine if, after viewing the evidence in the light most
fa vorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319
(1979). However, “[t]he prosecution may bear this burden entirely through circumstantial
evidence.” United States v. Bobb, 471 F.3d 491, 494 (3d Cir. 2006). Here, the
circumstantial evidence is more than sufficient to support the verdict.
Hopson lived in a house that was equipped to package and distribute heroin.
Witnesses testified in detail about the interactions between Hopson and Loren Brimage, the
confidential informant. Police observed Brimage entering Hopson’s home without any
heroin on him and leaving with bricks of heroin. Police also saw Brimage enter Hopson’s
house with “buy money” and leave shortly thereafter without the money. In addition,
police discovered several items of drug paraphernalia in Hopson’s home, including
stamped bags, face masks, latex gloves, and a digital scale that contained tan residue,
consistent with the appearance of the heroin found in the stamped bags. Finally, when the
police arrested Hopson, he asked “who set me up?” This evidence is clearly sufficient to
establish that Hopson was distributing heroin out of his home.
C. Unavailability of Confidential Informant
Hopson complains that Brimage, the government informant, was the only witness to
the alle ged buys and yet he did not testify at trial because the government claimed it was
unable to locate him. In the absence of Brimage, the government presented the testimony
of law enforcement officials to whom Brimage told about the buys from Hopson. Hopson
asserts that the effect of this testimony was to allow Brimage to testify without actually
being present at trial, thus violating the Confrontation Clause of the Sixth Amendment.
The Confrontation Clause is violated when hearsay evidence is admitted as
substantive evidence against a defendant who has no opportunity to cross examine the
declarant or when the hearsay statement of an unavailable witness does not bear adequate
indicia of reliability. Kentucky v. Stincer, 482 U.S. 730, 737 (1987). However, “[n]ot all
hearsay implicates the Sixth Amendment’s core concerns.” Crawford v. Washington, 541
U.S. 36, 51 (2004). Rather, the admission of the declarant’s testimony does not violate the
Constitution unless it is “testimonial hearsay.” Id. at 53.
Here, Brimage did not appear at trial and his audio recordings were not played.
Thus, no out of court statement by Brimage was ever presented at trial. Moreover,
Hopson had every opportunity to cross examine the law enforcement officers who testified
at trial about what they saw outside of Hopson’s home, as well as in their encounters with
Brimage. We find no Confrontation Clause violation here.
D. Whether Hopson’s Sentence Was Reasonable
Finally, Hopson contends that the district court abused its discretion in sentencing
him to a term of imprisonment of 105 months. Hopson points out that the district court
rejected the government’s characterization that he was a career offender, yet then varied
upward based upon career offender factors. Hopson claims that because he was not a
career offender, the district court should have sentenced him to a range of 33 to 41 months.
Our appellate review proceeds in two stages. It begins by “ensur[ing] that the
district court committed no significant procedural error, such as failing to calculate (or
improper ly calculating) the Guidelines range, treating the Guidelines as mandatory, failing
to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or
failing to adequately explain the chosen sentence – including an explanation for any
deviation from the Guidelines range.” Gall v. United States, 128 S.Ct. 586, 597 (2007).
We do not presume that a district court considered the factors solely because the sentence
falls within the Guidelines range. United States v. Cooper, 437 F.3d 324, 329-30 (3d Cir.
2006). If a district court has not committed any procedural error, “we then, at stage two,
consider its substantive reasonableness.” United States v. Levinson, 543 F.3d 190, 195
(3d Cir. 2008). Our substantive review requires us not to focus on one or two factors, but on
the totality of the circumstances. Gall, 128 S.Ct. at 597; United States v. Howe, 543 F.3d
128, 137 (3d Cir. 2008). At both stages of our review, the party challenging the sentence
has the burden of demonstrating unreasonableness. Cooper, 437 F.3d at 332.
Where, as here, a district court decides to vary from the Guidelines’
recommendations, we “must give due deference to the district court’s decision that the §
3553(a) factors, on a whole, justify the extent of the variance.” Gall, 128 S.Ct. at 597.
“We afford deference to the District Court because it is in the best position to determine the
appropriate sentence in light of the particular circumstances of the case.” United States v.
Dragon, 471 F.3d 501, 506 (3d Cir. 2006).
Here, the district court found that Hopson’s criminal history demonstrated that he
was someone who “consistently violates” society’s laws. The court pointed out that
Hopson had four prior serious drug offenses (noting that one of them was too old to count
against him under the guidelines). The court observed that the three drug trafficking crimes
for which he was sentenced had been counted as a single sentence rather than separately
because the offenses were not separated by intervening arrests, even though the three cases
involved completely separate crimes. The court pointed out that had Hopson been
arrested rather than showing up on his own pursuant to a summons, he would have
qualified as a career offender. The court also noted that Hopson committed a stalking
offense just months after he was released from serving most of a serious 3 to 6 year
sentence of imprisonment for his three other prior drug trafficking crimes. The court
reasoned that if a six year sentence did so little to deter Hopson’s criminal activities, a 33 to
41 month sentence would have little to no impact. Accordingly, the district court imposed
a lengthy sentence because of its concern that Hopson had demonstrated his proclivity for
recidivism. We can find nothing unreasonable about the sentence that was imposed and
the court did not commit any legal error in imposing it.
III. CONCLUSION.
For the reasons set forth above, we will affirm the judgment of conviction and
sentence.