United States v. Ray ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-5155
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CECIL RAY, JR., a/k/a Esco,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. John Preston Bailey,
Chief District Judge. (3:06-cr-00008-JPB-DJJ-1)
Submitted: February 9, 2009 Decided: March 13, 2009
Before TRAXLER, KING, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Matthew M. Robinson, Covington, Kentucky, for Appellant. Sharon
L. Potter, United States Attorney, Thomas O. Mucklow, Assistant
United States Attorney, Martinsburg, West Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Cecil Ray, Jr., appeals his jury convictions for
conspiracy to distribute in excess of fifty grams of cocaine
base, in violation of 21 U.S.C. §§ 846, 841(b)(1)(A) (2006), and
distributing or aiding and abetting the distribution of
approximately 1.95 grams of cocaine base within 1000 feet of
school property, in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(C), 860 (2006), and his resulting life sentence. He
asserts prosecutorial misconduct and error in the denial of a
motion to strike testimony, and challenges the sufficiency of
the evidence and the reasonableness of his sentence. We affirm.
A claim of prosecutorial misconduct is reviewed “to
determine whether the conduct complained of so infected the
trial with unfairness as to make the resulting conviction a
denial of due process.” United States v. Scheetz, 293 F.3d 175,
185 (4th Cir. 2002) (internal quotation marks and citation
omitted). To prevail under this standard, Ray must show that
“the prosecutor’s remarks or conduct were improper and . . .
that such remarks or conduct prejudicially affected his
substantial rights” so as to deprive him of a fair trial. Id.First, Ray contends that the Government engaged in
misconduct when it inquired of its own witness, Leroy Newell,
whether Ray’s counsel had represented him in the past. Defense
counsel had represented Newell twelve years previously. When
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the issue was raised before trial, Ray’s counsel assured the
court he had no memory of the representation and no information
that would be pertinent to cross examination. Upon
consultation, Ray agreed to waive any possible conflict of
interest.
As the district court noted, the Government’s
impeachment of its own witness was not inappropriate in this
case where it was surprised by Newell’s adverse testimony. See
United States v. Baldivid, 465 F.2d 1277, 1279 (4th Cir. 1977).
Furthermore, the inquiry into Newell’s possible bias and his
motivation for deviating from his expected testimony, including
his prior relationship with counsel, would have been permissible
were it not for the court’s concern that the potential prejudice
to Ray was not specifically foreseen and discussed prior to
trial when Ray waived the possible conflict of interest.
Nevertheless, even if Ray could show impropriety, he
cannot establish prejudice. The court sustained the objection
to the question and there was no further inquiry. The court
instructed the jury that it should not consider an answer to any
question to which an objection was sustained. See United
States v. Williams, 461 F.3d 441, 451 (4th Cir. 2006) (jury is
presumed to follow the instructions provided them). We conclude
the isolated inquiry by the Government did not prejudicially
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affect Ray’s substantial rights so as to deprive him of a fair
trial.
Next, Ray claims the Government was allowed to present
evidence, through its witness, David Taylor, that Ray was
incarcerated. We conclude, however, that Taylor’s testimony
that he signed a statement at the jail in Ray’s presence did not
inform the jury that Ray was incarcerated.
Ray also alleges that the Government elicited
testimony, without prior notification to the defense, about drug
transactions outside of the conspiracy period. A prosecution
witness, Stephanie Payton, stated before trial that she
purchased drugs from Ray during the conspiracy period. At
trial, however, she said she purchased drugs from Ray “[a] long
while ago.” After Payton agreed with defense counsel’s
suggestion on cross examination that the time-frame of her
purchases was around 2002, before the conspiracy period began,
Ray moved to strike the testimony. The district court denied
the motion.
The record does not substantiate Ray’s claim of
misconduct. There is no evidence that the Government
circumvented the notice requirements of Fed. R. Evid. 404(b)
because the record does not indicate that the Government had
reason to believe Payton would testify about acts prior to the
conspiracy period.
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Ray next contends the district court erred in denying
his motion to strike Payton’s testimony because admission of the
testimony constructively amended the indictment, resulting in a
fatal variance, and because the Government failed to provide
advance notice of the testimony. A district court’s evidentiary
rulings are entitled to substantial deference and will only be
reversed for abuse of discretion. United States v. Benkahla,
530 F.3d 300, 309 (4th Cir. 2008), cert. denied, S. Ct. ,
2009 WL 56535 (U.S. Jan. 12, 2009) (No. 08-7428).
As noted, the record does not support a claim that the
Government failed to provide notice under Rule 404(b). We
conclude his variance argument is likewise without merit. See
United States v. Randall, 171 F.3d 195, 203 (4th Cir. 1999)
(only when the evidence presented at trial changes the elements
of the crime charged, such that the defendant is convicted of a
crime other than that charged in the indictment, does a fatal
variance occur).
Ray next challenges the sufficiency of the evidence
supporting his conspiracy conviction and claims that the
evidence, at most, established only that he sold drugs. “A
defendant challenging the sufficiency of the evidence faces a
heavy burden.” United States v. Foster, 507 F.3d 233, 245 (4th
Cir. 2007), cert. denied, 128 S. Ct. 1690 (2008). This court
reviews a sufficiency of the evidence challenge by determining
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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. United
States v. Collins, 412 F.3d 515, 519 (4th Cir. 2005); see
Glasser v. United States, 315 U.S. 60, 80 (1942).
In order to support his conviction for conspiracy to
distribute and to possess with intent to distribute drugs, the
Government had to prove: “(1) that [Ray] entered into an
agreement with one or more persons to engage in conduct that
violated 21 U.S.C. §[] 841(a)(1) . . . ; (2) that [he] had
knowledge of that conspiracy; and (3) that [he] knowingly and
voluntarily participated in the conspiracy.” United States v.
Mastrapa, 509 F.3d 652, 657 (4th Cir. 2007).
The Government presented evidence that Ray recruited,
organized, and supplied drug dealers for Martinsburg, West
Virginia, that Ray sold drugs personally and through surrogates,
and that Ray enforced his leadership through threats,
intimidation and violence. As evidenced by the finding of
guilt, the jury resolved any conflicts in testimony in favor of
the Government, determined the Government’s witnesses to be
sufficiently credible to support the verdict of guilty, and
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otherwise found sufficient circumstantial and direct evidence of
guilt. We likewise conclude the evidence was sufficient. 1
Ray also challenges the reasonableness of his life
sentence. We review the district court’s imposition of a
sentence under an abuse of discretion standard and are charged
with reviewing sentences for reasonableness. Gall v. United
States, 128 S. Ct. 586, 594, 597 (2007).
In determining whether a sentence is procedurally
reasonable, this court first assesses whether the district court
properly calculated the defendant’s advisory guidelines range.
Id. at 596-97. We then must assess whether the district court
failed to consider the 18 U.S.C. § 3553(a) factors and any
arguments presented by the parties, treated the guidelines as
mandatory, selected a sentence based on “clearly erroneous
facts,” or failed to sufficiently explain the selected sentence.
Id. at 597; United States v. Pauley, 511 F.3d 468, 473 (4th Cir.
2007). Finally, we review the substantive reasonableness of the
sentence, “taking into account the ‘totality of the
circumstances.’” Id. at 473 (quoting Gall, 128 S. Ct. at 597).
We afford sentences that fall within the properly calculated
1
Ray contends that the cumulative effect of the errors he
alleges deprived him of a fair trial. Because the district
court did not err in denying Ray’s motion to strike Payton’s
testimony or in denying his Fed. R. Crim. P. 29 motion, there is
nothing to aggregate and the cumulative error doctrine does not
apply.
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guideline range a presumption of reasonableness. See Pauley,
511 F.3d at 473; see also Rita v. United States, 551 U.S. 338,
__, 127 S. Ct. 2456, 2459, 2462 (2007) (upholding appellate
presumption).
Ray asserts that the district court erred in failing
to consider the racially disproportionate impact of the
statutory sentencing scheme for offenses involving crack
cocaine. 2 Ray points out that if his offense had involved fifty
grams of cocaine powder, instead of cocaine base, the statutory
maximum would have been twenty years instead of life. See 18
U.S.C. § 841(b)(1)(A), (C). However, this court has repeatedly
ejected challenges to the constitutionality of the sentencing
scheme under § 841. See United States v. Perkins, 108 F.3d 512,
518 (4th Cir. 1997); Burgos, 94 F.3d at 876-77; United States v.
Fisher, 58 F.3d 96, 99-100 (4th Cir. 1995). Moreover, in
Kimbrough v. United States, 128 S. Ct. 558 (2007), while the
Supreme Court held that district courts are permitted to
disagree with the policies underlying the Sentencing Guidelines,
the Court neither found § 841’s penalty provisions
2
Ray was sentenced after November 1, 2007, the effective
date of Amendment 706, which lowered the base offense level for
most offenses involving crack cocaine. Ray’s base offense level
of thirty-six was calculated under the amended version of USSG
§ 2D1.1.
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unconstitutional nor overruled our previous holdings rejecting
constitutional challenges to the 100:1 ratio.
Ray also claims the district court failed to
adequately consider his arguments in support of a lower
sentence. The record demonstrates that Ray’s sentence was not
procedurally unreasonable. The district court properly
calculated the advisory guideline range, and considered the
parties’ arguments and the § 3553(a) factors. The court simply
did not agree that Ray’s criminal history was relatively minor,
noting that his prior record included crimes involving firearms
and violence. The court found that a lesser sentence was not
appropriate because of Ray’s “lack of amenability to law and
societal controls” and because the court considered him to be a
“considerable threat to the community.” At bottom, then, while
the district court considered Ray’s arguments, it acted well
within its discretion in declining to be persuaded by them.
Because there was no procedural or substantive error
and because the sentence is within the statutory maximum, it is
not unreasonable. Accordingly, we affirm Ray’s convictions 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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