United States v. Pickett ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4288
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
THOMAS NEIL PICKETT,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (CR-04-47-F)
Submitted: February 15, 2006 Decided: March 9, 2006
Before MOTZ and SHEDD, Circuit Judges, and HAMILTON, Senior Circuit
Judge.
Affirmed by unpublished per curiam opinion.
Sofie W. Hosford, HOSFORD & HOSFORD, Wilmington, North Carolina,
for Appellant. Frank D. Whitney, United States Attorney, Anne M.
Hayes, Christine Witcover Dean, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
In September 2004, a jury found Thomas Pickett guilty of
possession of a firearm by a convicted felon, in violation of 18
U.S.C. §§ 922(g)(1), 924 (2000); use of a firearm during and in
relation to a drug trafficking crime, in violation of 18 U.S.C.
§ 924(c) (2000); and distribution of cocaine base, in violation of
21 U.S.C. § 841(a)(1) (2000). Additionally, the jury found Pickett
not guilty on a fourth charge, conspiracy to distribute more than
fifty grams of cocaine base, in violation of 21 U.S.C. § 846(2000); however, it convicted Pickett on the lesser included
offense of conspiracy to distribute five or more grams of cocaine
base. In February 2005, the district court sentenced Pickett to a
total of 352 months’ imprisonment. Pickett appeals his conviction
and sentence.
First, Pickett asserts that in-court and out-of-court
identifications of him by three witnesses were impermissibly
suggestive and unreliable. The Due Process Clause protects against
identification procedures that are unnecessarily suggestive and
conducive to mistaken identifications. See Neil v. Biggers, 409
U.S. 188, 198 (1972). Findings of fact made by a district court in
ruling on a motion to suppress are reviewed for clear error, but
the ultimate suppression decision is reviewed de novo. See United
States v. Rusher, 966 F.2d 868, 873 (4th Cir. 1992). A court must
engage in a two-step inquiry in determining whether identification
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testimony is admissible. See United States v. Wilkerson, 84 F.3d
692, 695 (4th Cir. 1996). First, the defendant must establish that
the identification procedure was impermissibly suggestive. See
Manson v. Brathwaite, 432 U.S. 98, 109 (1977). Second, even if the
procedure is found to be unduly suggestive, the identification is
valid if it was reliable. See id. at 114.
We may proceed directly to the reliability of the
identification without determining whether the defendant has met
the threshold requirement of suggestiveness, see Holdren v.
Legursky, 16 F.3d 57, 61 (4th Cir. 1994), and we find that the
identifications were sufficiently reliable. One witness had known
Pickett for several months. The other two witnesses engaged in
transactions with Pickett under circumstances sufficient to observe
his appearance reliably, either outside in the sunlight or inside
with the aid of adequate artificial light. Furthermore, all three
witnesses readily selected Pickett’s photo from a proper
photographic array.
Second, Pickett argues the district court admitted, and
subsequently provided no jury instruction for, evidence of bad acts
prior to the dates alleged in the indictment--evidence that was
intended to demonstrate his criminal disposition. See Fed. R.
Evid. 404(b). The alleged prior bad acts evidence was testimony
that Pickett possessed a firearm in January 2003. However, the
second superseding indictment alleged a drug trafficking conspiracy
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beginning in January 2001. The district court admitted the
testimony as probative of Pickett’s participation in the
conspiracy. Therefore, because the testimony related to events
within the charged time frame of the conspiracy, its admission into
evidence did not implicate Rule 404(b).
Finally, Pickett argues that the district court committed
clear error by sentencing him based upon a quantity of cocaine base
greater than the amount for which the jury convicted him in its
special verdict, in violation of United States v. Booker, 543 U.S.
220 (2005). “Consistent with the remedial scheme set forth in
Booker, a district court shall first calculate (after making the
appropriate findings of fact) the range prescribed by the
guidelines.” United States v. Hughes, 401 F.3d 540, 546 (4th Cir.
2005). Because Pickett was sentenced post-Booker under the
advisory sentencing guidelines, the district court first calculated
his guideline range, including the amount of drugs the court found
reasonably attributable to him. In calculating drug amounts, the
court may consider any relevant information, provided that the
information has sufficient indicia of reliability to support its
accuracy. United States v. Uwaeme, 975 F.2d 1016, 1021 (4th Cir.
1992). Because the district court applied the correct standards in
considering evidence regarding the drug amount attributable to
Pickett, and because the court did not consider itself bound by the
guidelines, we find no error.
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Accordingly, we affirm Pickett’s conviction and sentence.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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