United States v. Oshay Jones , 622 F. App'x 204 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4508
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
OSHAY TERRELL JONES,
Defendant - Appellant.
No. 14-4523
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KEARRAH MONIQUE JONES,
Defendant - Appellant.
No. 14-4524
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
QWANESHA TYANN MORRIS,
Defendant - Appellant.
No. 14-4525
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DOMINIQUE MAURICE JONES,
Defendant - Appellant.
Appeals from the United States District Court for the Western
District of Virginia, at Roanoke. Samuel G. Wilson, District
Judge. (7:13-cr-00038-SGW-1; 7:13-cr-00038-SGW-3; 7:13-cr-
00038-SGW-4; 7:13-cr-00038-SGW-2)
Submitted: June 30, 2015 Decided: August 4, 2015
Before SHEDD, FLOYD, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Krysia Carmel Nelson, LAW OFFICES OF KRYSIA CARMEL NELSON, PLC,
Charlottesville, Virginia; John E. Davidson, DAVIDSON & KITZMAN,
PLC, Charlottesville, Virginia; Michelle C.F. Derrico,
COPENHAVER, ELLETT, CORNELISON & DERRICO, Roanoke, Virginia;
Melissa W. Friedman, Roanoke, Virginia, for Appellants. Anthony
P. Giorno, Acting United States Attorney, R. Andrew Bassford,
Assistant United States Attorney, Roanoke, Virginia; Leslie R.
Caldwell, Assistant Attorney General, Sung-Hee Suh, Deputy
Assistant Attorney General, Thomas E. Booth, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, DC, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
A jury convicted Oshay Jones, Kearrah Jones, Dominique
Jones, (collectively “the Joneses”) and Qwanesha Morris
(together “Appellants”) of conspiracy to possess with intent to
distribute 28 grams or more of cocaine base, in violation of 21
U.S.C. §§ 841(a), 846 (2012). The district court sentenced each
appellant to a below-Guidelines sentence: Oshay and Dominique to
280 months’ imprisonment each, Kearrah to 120 months’
imprisonment, and Morris to 60 months’ imprisonment. The court
also ordered the Joneses to forfeit $220,000 and Morris to
forfeit $40,000.
Appellants assert that the district court erred in:
(1) refusing their proposed jury instruction that drug quantity
was an element of the offense, but sua sponte instructing on a
lesser included offense; (2) admitting telephone recordings
without adequate foundation; (3) ordering forfeiture; and
(4) imposing procedurally and substantively unreasonable
sentences. For the reasons that follow, we affirm.
I.
Appellants first challenge the district court’s
instructions to the jury regarding the drug weight attributable
to the conspiracy. They contend that drug quantity was an
element necessary for conviction pursuant to Alleyne v. United
States, 133 S. Ct. 2151, 2158 (2013), which held that any fact
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that increases a defendant’s statutory minimum sentence is
considered an element of the offense. Appellants also contend
that the court’s sua sponte lesser included offense instruction
was error because it was not requested by any of the parties,
they lacked sufficient notice of the lesser offense to prepare
an adequate defense, and it interfered with their all-or-nothing
trial strategy—that is, they were either guilty as explicitly
charged in the superseding indictment or not guilty at all.
“We review for abuse of discretion the district court’s
denial of [a] proposed jury instruction[].” United States v.
Sonmez, 777 F.3d 684, 688 (4th Cir. 2015). An abuse of
discretion exists where the proposed instruction “(1) [was]
correct, (2) [was] not substantially covered by the charge that
the district court actually gave to the jury, and (3) involved
some point so important that the failure to give the
instruction[] seriously impaired the defendant’s defense.” Id.We conclude that the district court did not abuse its
discretion because drug quantity is not an element that must be
established for conviction. See United States v. Hickman, 626
F.3d 756, 770-71 (4th Cir. 2010) (vacating conviction and
sentence for conspiracy to distribute and possess with intent to
distribute one kilogram or more of heroin, and remanding with
directions to the district court for “entry of judgment against
Hickman under Count I of the indictment for conspiracy to
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distribute and to possess with intent to distribute heroin in
the amount of one hundred grams or more”).
Moreover, a “defendant may be found guilty of . . . [a
lesser] offense necessarily included in the offense charged.”
Fed. R. Crim. P. 31(c). “A defendant charged with conspiracy
to . . . distribute an amount of a controlled substance can, if
the evidence warrants, be convicted of one of the lesser
included offenses based on a smaller amount of the substance.”
United States v. Cabrera-Beltran, 660 F.3d 742, 753 (4th Cir.
2011) (internal quotation marks omitted). Parties may not
reject a lesser included offense instruction, “provided that the
evidence would permit a jury rationally to find the defendant
guilty of the lesser offense and acquit him of the greater.”
Lespier, 725 F.3d at 450 (internal quotation marks and brackets
omitted).
II.
Appellants next challenge the district court’s admission of
audio recordings of jailhouse telephone calls between Oshay and
Dominique and their associates. We review a district court’s
evidentiary rulings for abuse of discretion. United States v.
Taylor, 754 F.3d 217, 226 n.* (4th Cir.), petition for cert.
filed, __ S. Ct. __ (Sept. 4, 2014) (No. 14-6166). An abuse of
discretion occurs only when the district court “acted
arbitrarily or irrationally in admitting evidence.” United
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States v. Williams, 445 F.3d 724, 732 (4th Cir. 2006) (internal
quotation marks omitted). The hearsay rule allows admission of
records of a regularly conducted activity “if[] (A) the record
was made at or near the time by . . . someone with knowledge;
(B) the record was kept in the course of a regularly conducted
activity of a business . . . ; [and] (C) making the record was a
regular practice of that activity.” Fed. R. Evid. 803(6). The
nature of the record may be established by “the custodian or
another qualified witness.” Fed. R. Evid. 803(6)(D).
The term “qualified witness” is broadly construed. See
United States v. Franco, 874 F.2d 1136, 1139-40 (7th Cir. 1989)
(noting liberal interpretation of term by Third, Sixth, Seventh,
and Eighth Circuits). A qualified witness is not required to
“have personally participated in or observed the creation of the
document.” United States v. Moore, 791 F.2d 566, 574 (7th Cir.
1986). Nor is he required to “know who actually recorded the
information.” United States v. Dominguez, 835 F.2d 694, 698
(7th Cir. 1987). Further, “[t]here is no requirement that the
witness . . . be able to personally attest to its accuracy.”
United States v. Duncan, 919 F.2d 981, 986 (5th Cir. 1990).
Appellants contend that the court improperly found that
Lieutenant Frank Harris, the assistant chief correctional
officer, was a qualified witness. We disagree. The record
reveals that Harris was in charge of the phone recordings as the
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jail’s custodian of records, explained how the recordings were
made, and demonstrated his understanding of the system and how
the recordings were stored and retrieved. Thus, we discern no
abuse of the court’s discretion.
III.
Appellants next assert that the district court erred in
ordering forfeiture, arguing the court’s determinations lack
support in the record. In an appeal from criminal forfeiture
proceedings, we review the district court’s findings of fact for
clear error and conclusions of law de novo. United States v.
Herder, 594 F.3d 352, 363 (4th Cir. 2010). A defendant
convicted of a drug trafficking offense must forfeit any
property constituting the proceeds of the offense. 21 U.S.C.
§ 853(a) (2012). To obtain forfeiture, the Government must
establish by a preponderance of the evidence a nexus between the
property for which it seeks forfeiture and the crime. Fed. R.
Crim. P. 32.2(b)(1)(A). Where, as here, the Government’s theory
is that the property constitutes proceeds of the offense, a “but
for” test is applied. See, e.g., United States v. DeFries, 129
F.3d 1293, 1313 (D.C. Cir. 1997) (collecting cases). We
conclude that the district court’s determination of the
forfeiture judgment amounts was supported by the record and is
free of error.
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IV.
Finally, the Joneses challenge the reasonableness of their
sentences, which we review for abuse of discretion. United
States v. Howard, 773 F.3d 519, 527-28 (4th Cir. 2014). We
first review for procedural error, such as improper calculation
of the Guidelines range, failure to consider the 18 U.S.C.
§ 3553(a) (2012) sentencing factors, selecting a sentence based
on clearly erroneous facts, or failure to adequately explain the
sentence. Howard, 773 F.3d at 528. Absent any significant
procedural error, we examine substantive reasonableness under
“the totality of the circumstances.” Id. (internal quotation
marks omitted). Sentences within or below a properly calculated
Guidelines range are presumed reasonable, and the presumption
“can only be rebutted by showing that the sentence is
unreasonable when measured against the 18 U.S.C. § 3553(a)
factors.” United States v. Louthian, 756 F.3d 295, 306 (4th
Cir.), cert. denied, 135 S. Ct. 421 (2014).
A district court’s legal conclusions at sentencing are
reviewed de novo and factual findings for clear error. United
States v. Gomez-Jimenez, 750 F.3d 370, 380 (4th Cir.), cert.
denied, 135 S. Ct. 305 (2014), and cert. denied, 135 S. Ct. 384(2014). In resolving factual disputes, a “sentencing court may
give weight to any relevant information before it, including
uncorroborated hearsay, provided that the information has
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sufficient indicia of reliability to support its accuracy.” Id.“[W]e afford considerable deference to a district court’s
determinations regarding the reliability of information in a
PSR,” and will not disturb such determinations unless we have
“the definite and firm conviction that a mistake has been
committed.” United States v. McDowell, 745 F.3d 115, 120 (4th
Cir. 2014) (internal quotation marks omitted), cert. denied, 135
S. Ct. 942 (2015).
The Joneses contend that the district court erred in
calculating the Guidelines ranges because the base offense
levels determined by the presentence reports (“PSRs”) were based
on double- and triple-counted drug quantities, and that each was
responsible for only a fraction of that amount. The Government
responds that the district court properly relied on the drug
quantity determinations in the PSRs, and that the Joneses are
responsible for all reasonably foreseeable acts in furtherance
of the conspiracy.
Under the Guidelines, a defendant convicted of conspiring
to distribute controlled substances “is accountable for all
quantities of contraband with which he was directly involved
and, in the case of a jointly undertaken criminal activity, all
reasonably foreseeable quantities of contraband that were within
the scope of the criminal activity that he jointly undertook.”
U.S. Sentencing Guidelines Manual § 1B1.3 cmt. n.2 (2013). The
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Government must prove the drug quantity attributable to the
defendant by a preponderance of the evidence. United States v.
Carter, 300 F.3d 415, 425 (4th Cir. 2002). We conclude that the
Joneses fail to affirmatively show that the court relied on
unreliable information. Evidence in the record satisfied the
minimum threshold to warrant a base offense level of 34 under
USSG § 2D1.1(c)(3) (2013).
The Joneses also assert various errors by the district
court in applying sentencing enhancements for possession of a
firearm pursuant to USSG § 2D1.1(b)(1), role adjustments
pursuant to USSG § 3B1.1(a) (2013), and criminal livelihood
pursuant to USSG § 2D1.1(b)(14)(E). Dominique also challenges
the calculation of his criminal history. Our review of the
record reveals no clear error by the district court in these
determinations. Accordingly, we discern no procedural error.
Finally, the Joneses assert that their below-Guidelines
sentences were excessive because they were based on relevant
conduct found by the district court rather than the jury. The
Supreme Court made clear in Alleyne, however, that its holding
“does not mean that any fact that influences judicial discretion
must be found by a jury. We have long recognized that broad
sentencing discretion, informed by judicial factfinding, does
not violate the Sixth Amendment.” 133 S. Ct. at 2163; see
United States v. Smith, 751 F.3d 107, 117 (3d Cir.) (“Alleyne
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did not curtail a sentencing court’s ability to find facts
relevant in selecting a sentence within the prescribed statutory
range.”), cert. denied, 135 S. Ct. 383 (2014), and cert. denied,
135 S. Ct. 497 (2014).
Here, drug quantities found by the court did not alter the
statutory range established by the jury’s verdicts. Instead,
the judge-found facts determined the Guidelines range from which
to sentence the Joneses within the statutory range. Moreover,
the court was sensitive to the Joneses’ personal and criminal
backgrounds, their involvement in the conspiracy, their ages,
and the seriousness of the offense. Importantly, the court did
not ignore their arguments for downward variances, but rather
considered the totality of circumstances in imposing below-
Guidelines sentences. The presumption that the sentences are
substantively reasonable has not been rebutted.
For these reasons, we affirm the district court’s
judgements and orders of forfeiture. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before this court, and argument would
not aid the decisional process.
AFFIRMED
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