United States v. Morton , 239 F. App'x 798 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4311
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JAMISON J. MORTON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, District
Judge. (3:05-cr-409)
Submitted: June 15, 2007 Decided: July 9, 2007
Before WILKINSON, TRAXLER, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Robert L. Flax, Richmond, Virginia, for Appellant. Chuck Rosenberg,
United States Attorney, Stephen W. Miller, Assistant United States
Attorney, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Following a jury trial, Jamison Morton was convicted of
one count of possession with intent to distribute five grams or
more of crack cocaine, in violation of 21 U.S.C. § 841 (2000)
(“Count One”), one count of possession of five grams or more of
crack cocaine, in violation of 21 U.S.C. § 844 (2000) (“Count
Two”), one count of possession of a firearm in furtherance of a
drug trafficking offense, in violation of 18 U.S.C. § 924(c) (2000)
(“Count Three”), and one count of being a felon in possession of a
firearm, in violation of 18 U.S.C. § 922(g)(1) (2000) (“Count
Four”). Morton was sentenced to 211 months’ imprisonment. For the
reasons set forth below, we affirm Morton’s convictions and
sentence.
Taken in the light most favorable to the Government,
Evans v. United States, 504 U.S. 255, 257 (1992), the evidence
adduced at trial established the following facts. In June 2005,
City of Richmond Police Officers Gilbert, Lindsey, Taylor, and
Martin were surveilling a certain part of the Church Hill
neighborhood. During the course of this surveillance, Gilbert
observed an individual later identified as Morton engage in several
interactions that were, in Gilbert’s opinion, consistent with
street-level drug transactions. However, Gilbert did not believe
he had a sufficient basis to intervene. Morton eventually left the
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area, driving a silver Cadillac. Gilbert directed the other
officers to follow the Cadillac and to stop it if possible.
While in pursuit, Lindsey and Taylor noticed that one of
the Cadillac’s brake lights was not functioning. Lindsey contacted
police dispatch via radio, informing dispatch that they planned to
stop the vehicle. The officers activated their blue lights;
instead of yielding, however, Morton fled. The officers continued
to pursue Morton. Morton eventually entered an alley, at which
point he threw a white plastic bag out of the vehicle’s window.
The bag remained airborne for only a few seconds before falling
straight to the ground. Still in contact with dispatch, Lindsey
reported the bag being thrown from the vehicle but, as they were
still in pursuit, the officers did not stop to retrieve it. After
Morton was apprehended, Lindsey returned to the alley where he
found the bag, which contained a loaded .9 mm pistol wrapped in a
T-shirt and 115 individually wrapped pieces of crack cocaine.1
At trial, Officers Gilbert, Lindsey, and Taylor all
testified to their observations on the night in question. The
Government also called Special Agent Robert Scanlon of the DEA as
an expert witness on drug trafficking and its connection to
firearms. Agent Scanlon explained that possessing 115 individually
wrapped pieces of crack cocaine was more consistent with an intent
1
The parties stipulated that the total weight of the seized
crack was 11.33 grams.
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to distribute than with personal use, and that firearms are
frequently used to facilitate drug transactions.
At the close of the Government’s case-in-chief, Morton
moved, pursuant to Fed. R. Civ. P. 29, for judgment of acquittal;
the district court denied the motion. Testifying in his own
defense, Morton denied having thrown anything out of the car window
and explained that Gilbert had previously harassed Morton.
After it received the case, the jury sent the court two
requests: one, to review Agent Scanlon’s testimony; and two, for
clarification as to whether the Government had to establish Morton
brandished the firearm in order to prove Morton’s guilt on Count
Three. Without objection, the court denied the jury’s request to
review Scanlon’s testimony. With regard to the second request, in
addition to directing the jury to its prior instruction, the court
also expressly noted that the Government did not have to prove
Morton actually brandished the firearm. Morton’s attorney objected
to this supplemental information. The court also rejected one
juror’s request to present questions orally, noting that any
questions should be submitted in writing to allow the court time to
consult with the attorneys before responding. Shortly thereafter,
the jury returned a guilty verdict on all four counts.
Prior to trial, the Government offered Morton a plea deal
that involved dropping Count Four and foregoing enhanced
sentencing. Before the deadline for accepting the plea expired,
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Morton contacted a new attorney, David Lassiter. Lassiter
contacted the Assistant United States Attorney prosecuting Morton
and asked to review the Government’s case. Government counsel
provided Lassiter a copy of Morton’s file. Lassiter requested an
extension of the period within which to accept the plea offer, but
Government counsel declined this request as the deadline had
already been extended once. Government counsel informed Lassiter
that if Morton did not accept the plea offer by noon on December 5,
the Government would file a notice of its intent to seek an
enhanced sentence pursuant to 21 U.S.C. § 851 (2000). Upon receipt
of Morton’s rejection of the plea offer, the Government filed § 851
notice of its intent to seek an enhanced sentence.
Several days later, Government counsel learned that the
City of Richmond Police Department had an audio tape of the
discourse between Lindsey and the dispatch officer. After
receiving a copy of the tape, Lassiter requested that the
Government withdraw the § 851 notice and reopen its plea offer,
thus giving Morton an opportunity to reconsider his decision to
plead not guilty in light of this new evidence. The Government
declined Lassiter’s request.
Lassiter filed a motion to compel the Government to
withdraw the § 851 notice and to preclude the use of the tape
during the Government’s case-in-chief. Lassiter argued that the
Government had agreed to provide the defense all of the evidence it
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had against Morton in order to facilitate Morton making an informed
decision regarding whether to plead guilty; thus, because the
audiotape surfaced after Morton rejected the plea offer, Lassiter
maintained that the Government should be required to withdraw the
§ 851 notice and to permit Morton another opportunity to accept the
plea offer. The court denied the motions. Morton proceeded to
trial and was found guilty on all counts.
Prior to sentencing, the probation officer prepared a
pre-sentence report (“PSR”) in which he recommended a total offense
level of thirty-one and criminal history category IV.2 The
probation officer determined that Morton had nine criminal history
points, seven of which related to past convictions. At sentencing,
the district court adopted the Guidelines application set forth in
the PSR without modification and, after considering the 18 U.S.C.A.
§ 3553(a) (West 2000 & Supp. 2006) factors, sentenced Morton to 211
months’ imprisonment.3 Morton timely noted his appeal.
Morton’s appellate brief presents six issues. Counsel
avers that only three of these issues have merit: (1) whether
there was sufficient evidence to support Morton’s convictions for
possession with intent to distribute and use of a firearm in
2
Morton does not ascribe any error to the calculation of his
total offense level on appeal.
3
Morton’s sentence consisted of 151 months on Counts One and
Two, and 120 months on Count Four, to be served concurrently, and
sixty months on Count Three, to run consecutively.
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furtherance of a drug trafficking offense; (2) whether Morton’s
criminal history was correctly calculated; and (3) whether Morton’s
sentence was reasonable and whether this court should afford a
within-Guidelines range sentence a presumption of reasonableness.
The other three issues, raised pursuant to Anders v. California,
386 U.S. 738 (1967), are that: (1) the pursuit and stop of
Morton’s vehicle violated his Fourth Amendment rights; (2) the
court abused its discretion in responding to the jury’s questions;
and (3) the court erred in denying Morton’s motion to compel
withdrawal of the § 851 notice.
I. Sufficiency of the Evidence
This court reviews sufficiency of the evidence challenges
by determining whether, viewing the evidence in the light most
favorable to the Government, any rational trier of fact could find
the essential elements of the crime beyond a reasonable doubt.
Glasser v. United States, 315 U.S. 60, 80 (1942); United States v.
Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982). The court reviews
both direct and circumstantial evidence, and permits the
“[G]overnment the benefit of all reasonable inferences from the
facts proven to those sought to be established.” Tresvant, 677
F.2d at 1021. Furthermore, “[t]he Supreme Court has admonished
that we not examine evidence in a piecemeal fashion, but consider
it in cumulative context.” United States v. Burgos, 94 F.3d 849,
863 (4th Cir. 1996) (citations omitted).
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In evaluating the sufficiency of the evidence, this court
does not “weigh the evidence or review the credibility of the
witnesses.” United States v. Wilson, 118 F.3d 228, 234 (4th Cir.
1997). Where the evidence supports differing reasonable
interpretations, the jury decides which interpretation to credit.
Id. (quotations omitted). This court will uphold the jury’s
verdict if there is substantial evidence to support it, and will
reverse only in those rare cases “where the prosecution’s failure
is clear.” United States v. Beidler, 110 F.3d 1064, 1067 (4th Cir.
1997) (quotations omitted).
To establish Morton’s guilt on Count One — possession
with intent to distribute — the Government must prove beyond a
reasonable doubt that Morton: (1) knowingly; (2) possessed the
controlled substance; (3) with the intent to distribute it.
Burgos, 94 F.3d at 873. Possession may be actual or constructive,
United States v. Rusher, 966 F.2d 868, 878 (4th Cir. 1992), and may
be established by circumstantial evidence. United States v.
Wright, 991 F.2d 1182, 1187 (4th Cir. 1993). Intent to distribute
may be inferred if the amount of drugs found exceeds an amount
normally associated with personal consumption. Id.There was ample evidence to support the jury’s verdict.
Gilbert testified that, after observing Morton engage in several
exchanges consistent with hand-to-hand, street-level drug sales,
Morton drove away in a Cadillac. Morton was the sole occupant of
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the vehicle. While in pursuit of the Cadillac, Lindsey and Taylor
observed the driver, later identified as Morton, throw a white
plastic bag from the vehicle into an alley. Lindsey recovered the
plastic bag in which he found 115 individually wrapped crack rocks
and a firearm. DEA Agent Scanlon testified that the manner in
which the crack was packaged and the total weight was more
consistent with an intent to distribute than with personal use.
Although the jury heard Morton’s testimony in which he denied
throwing the bag from his car window, it is plain that the jury
credited the officers’ version of events over Morton’s. This
credibility determination was well within the jury’s province and
we will not disturb it on appeal.
With regard to Count Three, to establish a violation of
18 U.S.C. § 924(c), use of a firearm in furtherance of a drug
trafficking offense, the Government must prove that “possession of
a firearm furthered, advanced, or helped forward a drug trafficking
crime.” United States v. Lomax, 293 F.3d 701, 705 (4th Cir. 2002).
Whether the firearm served such a purpose is ultimately a factual
question, and the factfinder is free to consider the numerous ways
in which a firearm might further or advance drug trafficking. Id.“Ultimately, the test is whether a reasonable jury could, on the
evidence presented at trial, find beyond a reasonable doubt that
possession of the firearm facilitated a drug trafficking crime
. . .; ‘in furtherance’ means that the gun afforded some advantage
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(actual or potential, real or contingent) relevant to the
vicissitudes of drug trafficking.” United States v. Lewter, 402
F.3d 319, 322 (2d Cir. 2005). The court has recognized that drug
deals frequently involve guns. Lomax, 293 F.3d at 706.
Again, our review of the transcript reveals sufficient
evidence on which the jury could convict Morton. Lindsey testified
that he recovered the loaded firearm from the bag he observed
Morton throw from his vehicle; 115 pieces individually wrapped
crack cocaine were found in this same bag. As Morton was the sole
occupant in the vehicle, it is plain that he actually possessed the
firearm. The fact that Morton had the firearm in close proximity
to the crack, which in turn was clearly packaged for sale,
indicates that the firearm provided Morton, at minimum, a potential
advantage. Lewter, 402 F.3d at 322. For these reasons, we affirm
the jury’s guilty verdicts on both Counts One and Three.
II. Criminal History Calculation
Morton challenges the attribution of criminal history
points based on three prior convictions: driving while under a
suspended license, possession of an alcoholic beverage by a minor,
and driving while under a suspended license, second or subsequent
offense. According to Morton, none of these convictions are
countable under the Guidelines, thus yielding only four criminal
history points and a category III criminal history.
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Morton did not raise any objection to the calculation of
his criminal history in the district court. Accordingly, our
review is for plain error. United States v. Hughes, 401 F.3d 540,
547 (4th Cir. 2005); United States v. Martinez, 277 F.3d 517, 524
(4th Cir. 2002). Under the plain error standard, Morton must show:
(1) there was error; (2) the error was plain; and (3) the error
affected his substantial rights. United States v. Olano, 507 U.S.
725, 732-34 (1993). When these conditions are satisfied, this
court may exercise its discretion to notice the error only if it
“seriously affect[s] the fairness, integrity or public reputation
of judicial proceedings.” Id. at 736 (internal quotation marks
omitted). The burden of showing plain error is on the defendant.
United States v. Strickland, 245 F.3d 368, 379-80 (4th Cir. 2001).
Morton has failed to demonstrate any error, let alone
plain error, in calculating his criminal history. Morton argues
that he should not have received one criminal history point for his
conviction for possession of an alcoholic beverage by a minor
because “[c]onvictions for public intoxication are never counted”
under United States Sentencing Guidelines § 4A1.2(c)(2) (2005)
(“USSG”). However, the underlying offense was possession of an
alcoholic beverage by a minor. As this is plainly distinct from a
conviction for public intoxication, this particular Guideline
affords Morton no relief.
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Relying on USSG § 4A1.2(c)(1) (2005), Morton next asserts
that he should not have received a criminal history point for
either his conviction for driving while under a suspended license,
or his conviction for driving while under a suspended license —
second or subsequent offense, because he did not serve more than
thirty days on either conviction.
Section 4A1.2(c)(1) provides that certain misdemeanor
offenses will be counted in computing a defendant’s criminal
history if “the sentence was a term of probation of at least one
year or a term of imprisonment of at least thirty days.” The
Guideline lists “driving without a license or with a revoked or
suspended license” as one such countable offense. USSG
§ 4A1.2(c)(1). The language of the Guideline clearly demonstrates
that, in determining whether the conviction should be counted, it
is not the amount of time the defendant actually serves that
controls; instead, the sentencing court must look to the term of
imprisonment imposed. Id.; see also USSG § 4A1.2, cmt. n.2 (2005)
(“[C]riminal history points are based on the sentence pronounced,
not the length of time actually served.”).
Here, for the initial conviction for driving while under
a suspended license, Morton was sentenced to thirty days’
imprisonment, suspended conditioned upon good behavior; for the
conviction for driving while under a suspended license, second or
subsequent offense, Morton received a ninety-day term of
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imprisonment, eighty days of which were suspended conditioned upon
three years of good behavior. With regard to the first conviction,
the suspension of the sentence in its entirety does not alter the
fact that Morton was actually sentenced to thirty days’
imprisonment. USSG § 4A1.2(a)(3) (2005). Accordingly, the
district court did not err in awarding one criminal history point
for this conviction.
With regard to the second or subsequent suspended license
conviction, Morton served ten days on the ninety day sentence he
received. This is plainly sufficient to support the imposition of
one criminal history point. USSG § 4A1.2, cmt. n.2. The district
court committed no error in adopting the PSR’s calculation of
Morton’s criminal history.
III. Reasonableness of Morton’s Sentence
Morton next asserts that his criminal history category
overstates his criminal history. Because Morton did not raise this
issue below, we review only for plain error. Hughes, 401 F.3d at
547.
While Morton ascribes error to his criminal history
category, he also concedes that the probation officer properly
calculated Morton’s criminal history. We have reviewed the
calculation of Morton’s criminal history and find no plain error.
Morton’s criminal record establishes Morton’s continued refusal to
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abide by the law, and that is accurately reflected in his criminal
history category.
Morton next asserts a cursory challenge to this court’s
approach to resolving appeals from post-Booker4 sentences.
Particularly, Morton maintains that this court should not afford
sentences within the properly calculated Guidelines range a
presumption of reasonableness. We reject this argument as
foreclosed by circuit precedent. See, e.g., United States v.
Montes-Pineda, 445 F.3d 375, 379 (4th Cir.), petition for cert.
filed, __ U.S.L.W. __ (U.S. July 21, 2006) (No. 06-5439); United
States v. Johnson, 445 F.3d 339, 341-42 (4th Cir. 2006); United
States v. Moreland, 437 F.3d 424, 433 (4th Cir.), cert. denied, 126
S. Ct. 2054 (2006); United States v. Green, 436 F.3d 449, 457 (4th
Cir.), cert. denied, 126 S. Ct. 2309 (2006).
IV. Validity of Pursuit and Stop
The first issue raised pursuant to Anders is Morton’s
contention that the officers’ pursuit and eventual seizure of
Morton violated his Fourth Amendment rights. Morton maintains
that, although the officers averred that they initiated the traffic
stop because of the Cadillac’s brake light, this was merely
pretextual as the pursuit and the stop were truly motivated by
their suspicions that Morton had engaged in drug trafficking.
4
United States v. Booker, 543 U.S. 220 (2005).
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Counsel correctly asserts that this argument has no
merit. Whatever subjective intent the officers may have had at the
beginning of their pursuit is irrelevant to determining whether
they had probable cause to stop Morton’s vehicle. United States v.
Whren, 517 U.S. 806, 809-10 (1996); see also United States v.
Hassan El, 5 F.3d 726, 730 (4th Cir. 1993) (“[W]hen an officer
observes a traffic offense or other unlawful conduct, he or she is
justified in stopping the vehicle under the Fourth Amendment.”).
Having observed the malfunctioning brake light, the officers had
ample probable cause to initiate the stop. Accordingly, there was
no Fourth Amendment violation.
V. Response to Jury’s Inquiries
The next Anders issue is whether the district court
abused its discretion in handling the jury’s questions and
requests. This court reviews a district court’s decision to
respond to a jury’s question, and the form of that response, for
abuse of discretion. United States v. Smith, 62 F.3d 641, 646 (4th
Cir. 1995). “[I]n responding to a jury’s request for clarification
on a charge, the district court’s duty is simply to respond to the
jury’s apparent source of confusion fairly and accurately without
creating prejudice.” Id. An error requires reversal only if it is
prejudicial in the context of the record as a whole. See United
States v. United Med. & Surgical Supply Corp., 989 F.2d 1390,
1406-07 (4th Cir. 1993). Our review of the record leads us to
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conclude that the district court did not abuse its discretion in
handling any of the jury’s requests.
VI. Denial of Motion to Compel
Finally, Morton asserts that the district court erred in
denying his motion to compel the Government to withdraw the § 851
notice of its intent to seek an enhanced sentence and to reinstate
its plea offer. Morton appears to take the position that the
Government’s discovery of the audiotape of Lindsey’s narration of
events somehow triggered an obligation on the Government’s part to
withdraw the § 851 notice and to re-extend its plea offer, because
Morton decided to reject the Government’s plea deal prior to
knowing that this evidence existed.
This claim is wholly without merit. The Government
afforded Morton ample opportunity to plead guilty and avoid an
enhanced sentence under § 851. Morton rejected the proffered plea
offer, knowing that a consequence of that decision would be that
the Government would seek an enhanced sentence. It was not until
after Morton rejected the plea offer that the Government discovered
the audiotape of Lindsey’s conversation with dispatch. There was
no agreement between the parties that, should the Government
discover other inculpating evidence, it would permit Morton to
reconsider his not guilty plea. As there was simply no agreement
the court could have compelled the Government to perform, there was
no error in denying the motion to compel.
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For the foregoing reasons, we affirm Morton’s convictions
and sentence. We deny Morton’s motions to file a pro se supplement
and to amend that supplement. 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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