United States v. Troupe , 307 F. App'x 715 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-5030
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
COREY JERMAINE TROUPE,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Henry Coke Morgan, Jr.,
Senior District Judge. (2:07-cr-00046-HCM)
Submitted: October 31, 2008 Decided: December 10, 2008
Before NIEMEYER, GREGORY, and AGEE, Circuit Judges.
Affirmed in part; vacated and remanded in part by unpublished
per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Keith Loren
Kimball, Frances H. Pratt, Assistant Federal Public Defenders,
Norfolk, Virginia, for Appellant. Chuck Rosenberg, United
States Attorney, Richard D. Cooke, William D. Muhr, Assistant
United States Attorneys, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Following a jury trial, Corey Jermaine Troupe was
convicted of possession with intent to distribute approximately
53.8 grams of cocaine, in violation of 21 U.S.C.A. § 841(a)(1),
(b)(1)(C) (West 1999 & Supp. 2008) (Count One); possession of a
firearm in furtherance of a drug trafficking crime, in violation
of 18 U.S.C. § 924(c)(1) (2006) (Count Two); and possession of a
firearm by a convicted felon, in violation of 18 U.S.C.
§§ 922(g)(1), 924(e)(1) (2006) (Count Three). The district
court sentenced Troupe to 164 months in prison on Count One, a
consecutive sixty months in prison on Count Two, and 120 months
in prison on Count Three, to be served concurrently with the
other sentences, for a total of 224 months in prison. Troupe
timely appealed.
At the close of the Government’s evidence, Troupe
filed a motion for judgment of acquittal pursuant to Rule 29 of
the Federal Rules of Civil Procedure, contending that the
Government had failed to establish venue. Specifically, the
Government had presented evidence that the relevant events
occurred in Greensville County, Virginia, but neglected to
establish that Greensville County was in the Eastern District of
Virginia. Rather than grant the Rule 29 motion, the district
court permitted the Government to reopen its case to establish
that Greensville County is in the Eastern District of Virginia.
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Troupe contends on appeal that the district court erred by
denying the Rule 29 motion and abused its discretion by
permitting the Government to reopen its case to establish venue.
A court may take judicial notice that venue is proper
in a particular district. United States v. Kelly, 535 F.3d
1229, 1235-36 (10th Cir. 2008); United States v. Greer, 440 F.3d
1267, 1272 (11th Cir. 2006); cf. United States v. Lavender, 602
F.2d 639, 641 (4th Cir. 1979) (holding that court may take
judicial notice that crime occurred within federal
jurisdiction). In light of the evidence that the events in
question occurred in Greensville County, the district court
could have taken judicial notice that proper venue had been
established and denied the Rule 29 motion on this basis.
Rather than take judicial notice of proper venue,
however, the district court took the additional step of
permitting the Government to reopen its case to establish venue.
A court may allow the Government to reopen its case-in-chief to
present additional evidence after a defendant moves for judgment
of acquittal, United States v. Gray, 405 F.3d 227, 238 n.5 (4th
Cir. 2005), and its decision will be reviewed for abuse of
discretion. United States v. Abbas, 74 F.3d 506, 510 (4th Cir.
1996). We find no abuse of discretion in the district court’s
decision to permit the Government to reopen its case-in-chief to
establish proper venue.
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Next, Troupe argues that the district court improperly
permitted the Government to impeach him with a thirteen-year-old
conviction, in violation of Rule 609 of the Federal Rules of
Evidence. “Rule 609 is an impeachment rule which governs the
admissibility of evidence of certain criminal convictions of a
witness when offered to impeach that witness by proving
character for untruthfulness.” United States v. Norton, 26 F.3d
240, 243 (1st Cir. 1994). The rule does not govern the
introduction of prior convictions offered to contradict specific
testimony. Norton, 26 F.3d at 243-44; United States v. Leavis,
853 F.2d 215, 220 (4th Cir. 1988). Accordingly, when Troupe
testified that he was not and never had been a drug dealer, Rule
609 did not prohibit the Government from introducing his
thirteen-year-old conviction for possession with intent to
distribute cocaine to contradict Troupe’s claim.
Finally, Troupe asserts that the sentence imposed by
the district court was unreasonable because the court
miscalculated his guideline range. The Government agrees.
This court reviews a sentence for reasonableness,
applying an abuse of discretion standard. Gall v. United
States, 128 S. Ct. 586, 597 (2007); see also United States v.
Pauley, 511 F.3d 468, 473 (4th Cir. 2007). The appellate court
first must ensure that the trial court did not commit any
procedural error, such as “failing to calculate (or improperly
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calculating) the Guideline range, treating the Guidelines as
mandatory, failing to consider the [18 U.S.C.] § 3553(a)
[(2006)] 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
Guideline range.” Gall, 128 S. Ct. at 597. If the court finds
the sentence to be procedurally sound, it then considers the
substantive reasonableness of the sentence, taking into
consideration the totality of the circumstances. Id.Troupe received a base offense level of twenty-four
under U.S. Sentencing Guidelines Manual § 2K2.1(a)(2) (2006).
The guidelines establish a base offense level of twenty-four “if
the defendant committed any part of the subject offense after
sustaining at least two felony convictions of either a crime of
violence or a controlled substance offense.” USSG
§ 2K2.1(a)(2). The application notes direct that only felony
convictions that are assigned criminal history points under USSG
§ 4A1.1(a), (b), or (c) should count for determining the base
offense level under USSG § 2K2.1. USSG § 2K2.1 cmt. (n.10).
One of the convictions used to establish Troupe’s base offense
level was a conviction for possession of cocaine with intent to
distribute, which is not included within USSG § 4A1.1(a), (b),
or (c). Accordingly, the district court erred by counting this
offense in establishing Troupe’s base offense level. Without
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this error, Troupe’s base offense level would have been twenty
instead of twenty-four. USSG § 2K2.1(a)(4)(A).
Troupe’s offense level also was increased by four
levels pursuant to USSG § 2K2.1(b)(6) for possessing the firearm
in connection with another felony, namely drug distribution.
However, where, as here, the defendant is convicted of a
§ 924(c) offense in addition to the § 922(g) offense, the
§ 2K2.1(b)(6) enhancement does not apply. USSG § 2K2.4 cmt.
(n.4)
With a corrected base offense level of twenty and
placement in criminal history category VI, Troupe’s properly
calculated guideline range would have been seventy to eighty-
seven months’ imprisonment, rather than the 140 to 175 month
guideline range calculated by the district court. By failing to
properly calculate Troupe’s guideline range, we hold that the
district court committed “significant procedural error.” United
States v. Matamoros-Modesta, 523 F.3d 260, 263 (4th Cir. 2008).
We therefore conclude that the sentence imposed by the district
court is unreasonable.
Accordingly, we affirm Troupe’s convictions, but
vacate his sentence and remand for resentencing. We dispense
with oral argument because the facts and legal contentions are
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adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED IN PART;
VACATED AND REMANDED IN PART
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