United States v. Arlington Ashley ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-5214
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ARLINGTON ASHLEY, a/k/a Arlington Efrain Ashley,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Raymond A. Jackson,
District Judge. (4:10-cr-00088-RAJ-TEM-1)
Submitted: June 15, 2012 Decided: July 20, 2012
Before SHEDD and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Mark Diamond, Richmond, Virginia, for Appellant. Neil H.
MacBride, United States Attorney, Alexandria, Virginia; Michelle
Sudano, Second Year Law Student, WILLIAM & MARY SCHOOL OF LAW,
Williamsburg, Virginia; Eric M. Hurt, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Newport News,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Arlington Ashley (Ashley) appeals the district court’s
judgment following his convictions and sentence on one count of
possession with the intent to distribute more than 500 grams of
cocaine, 21 U.S.C. § 841(a)(1), (b)(1)(B)(iii); one count of
importing more than 500 grams of cocaine from Panama, id. § 952;
and one count of escape from custody, 18 U.S.C. § 751(a). We
affirm.
Ashley first argues the police lacked probable cause to
arrest him, and therefore, the district court erred in denying
his motion to suppress incriminating statements that he made to
the police following his arrest and to suppress cocaine found at
the home of a woman named Tara Upshaw (Upshaw), where Ashley was
arrested. We review the factual findings underlying the
district court’s denial of Ashley’s motion to suppress the
evidence at issue for clear error and its legal conclusions de
novo. United States v. Perkins, 363 F.3d 317, 320 (4th Cir.
2004).
Ashley was arrested without a warrant. Of relevance here,
the Fourth Amendment to the United States Constitution, U.S.
Const. amend. IV, permits a police officer to arrest a suspect
without a warrant if such police officer has probable cause to
believe the suspect has committed a crime, United States v.
Williams, 10 F.3d 1070, 1073 (4th Cir. 1993). An officer has
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probable cause to believe a suspect has committed a crime if the
facts and circumstances within the officer’s knowledge are
sufficient to warrant a prudent person, in the circumstances
shown, to conclude that the suspect has committed an offense.
Michigan v. DeFillippo, 443 U.S. 31, 37 (1979). Whether the
arresting officer himself had probable cause to arrest the
defendant is determined by the “totality of the circumstances,”
Maryland v. Pringle, 540 U.S. 366, 371 (2003), either known
personally to the arresting officer, communicated to him by one
or more of his fellow officers, or a combination of both, United
States v. Massenburg, 654 F.3d 480, 491-96 (4th Cir. 2011). Our
review of the record discloses that the arresting officer had
probable cause to believe that Ashley had committed two crimes,
namely, possession of cocaine with the intent to distribute and
the importation of cocaine from Panama, and therefore, his
arrest without a warrant did not violate the Fourth Amendment.
Second, Ashley contends the district court erred in denying
his Rule 29 motion for judgment of acquittal. Fed. R. Crim. P.
29. According to Ashley, he was entitled to judgment of
acquittal because the government failed to produce sufficient
evidence for a reasonable jury to find beyond a reasonable doubt
that he possessed with the intent to distribute and imported the
cocaine admitted into evidence at his trial. We review the
district court’s denial of Ashley’s Rule 29 motion de novo.
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United States v. Green, 599 F.3d 360, 367 (4th Cir.), cert.
denied, 131 S. Ct. 271 (2010). “We review the sufficiency of
the evidence to support a conviction by determining whether
there is substantial evidence in the record, when viewed in the
light most favorable to the government, to support the
conviction.” Id. (internal quotation marks omitted).
Furthermore, “[i]n evaluating the sufficiency of the evidence,
we do not review the credibility of the witnesses and assume
that the jury resolved all contradictions in the testimony in
favor of the government.” United States v. Foster, 507 F.3d
233, 245 (4th Cir. 2007). After reviewing the evidence adduced
at trial with respect to whether Ashley possessed with the
intent to distribute and imported the cocaine admitted into
evidence at his trial, we conclude that the district court did
not err in denying Ashley’s motion for judgment of acquittal.
Third, Ashley contends the district court deprived him of
his Sixth Amendment right to counsel during his sentencing
proceedings when it granted his motion to dismiss his court
appointed counsel and to proceed pro se during his sentencing
proceedings. Although the Sixth Amendment guarantees the right
to assistance of counsel at every critical stage of a criminal
prosecution, a defendant may waive the right and elect to
proceed pro se “if the waiver is knowing, intelligent, and
voluntary.” United States v. Singleton, 107 F.3d 1091, 1095
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(4th Cir. 1997). Whether Ashley effectively waived his right to
counsel during his sentencing proceedings is a question of law,
which we review de novo, based upon our examination of the
record as a whole. Id. at 1097 n.3. Our review of the record
in this case demonstrates that Ashley knowingly, intelligently,
and voluntarily waived his Sixth Amendment right to counsel
during his sentencing proceedings and elected to proceed pro se.
Thus, the district court did not err in granting his motion to
dismiss his court appointed counsel and to proceed pro se during
his sentencing proceedings.
Finally, Ashley contends the district court procedurally
erred when it refused to permit him to orally object for the
first time to facts stated in his presentence report at his
sentencing hearing. Ashley’s contention is without merit.
Although the district court informed Ashley of the requirement
that he make timely written objections to his presentence report
prior to his sentencing hearing, Fed. R. Crim. P. 32(f), Ashley
failed to do so and failed to show good cause for making the
untimely oral objections that he did make to the presentence
report at his sentencing hearing. Therefore, the district court
did not err when it refused to permit Ashley to orally object,
for the first time at his sentencing hearing, to facts stated in
the presentence report.
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For the reasons stated, we affirm the judgment below in
toto. 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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