United States v. Linwood Parker ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4472
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LINWOOD COLA PARKER, a/k/a Lenny,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Rebecca Beach Smith, District
Judge. (2:07-cr-00068-RBS-JEB-1)
Submitted: April 22, 2009 Decided: May 22, 2009
Before MOTZ, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Marc Seguinót, SEGUINÓT & ASSOCIATES, P.C., Dunn Loring,
Virginia, for Appellant. Dana J. Boente, Acting United States
Attorney, Darryl J. Mitchell, Assistant United States Attorney,
Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Linwood Cola Parker appeals his conviction after a
jury trial of conspiracy to distribute and possess with intent
to distribute cocaine, in violation of 21 U.S.C. § 846 (2006)
(Count 1); possession with intent to distribute cocaine, in
violation of 21 U.S.C. § 841(a)(1) (2006) (Count 3); nine counts
of using communication facilities to commit violations of the
Controlled Substances Act, in violation of 21 U.S.C. § 843(b)
(2006) (Counts 4-12); and felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1) (2006) (Count 13). He was
sentenced to a total of 276 months’ imprisonment. We affirm.
Parker raises three arguments on appeal: (1) evidence
presented at trial was insufficient to convict him of conspiracy
to distribute or possess with the intent to distribute cocaine;
(2) promises of leniency in exchange for testimony made by the
Government to witnesses violated 18 U.S.C. § 201(c)(2) (2006);
and (3) his sentence was unreasonable.
I. Sufficiency of the Evidence
“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). We review challenges to the sufficiency of the evidence
by determining whether, viewing the evidence in the light most
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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
doing so, we review both direct and circumstantial evidence, and
give the government all reasonable inferences from the facts
shown to those sought to be established. United States v.
Harvey, 532 F.3d 326, 333 (4th Cir. 2008). We will uphold the
jury’s verdict if substantial evidence supports it, and will
reverse only in those rare cases of clear failure by the
prosecution. Foster, 507 F.3d at 244-45.
In order to support Parker’s conviction for conspiracy
to distribute and to possess with intent to distribute drugs,
the Government had to prove: “(1) that [Parker] 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); see United
States v. Burgos, 94 F.3d 849, 857 (4th Cir. 1996) (en banc).
Parker contends that the evidence was insufficient to support
his conviction because, at most, it established no more than a
buyer/seller relationship between himself and others.
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However, we specifically rejected such an argument in
United States v. Reid, 523 F.3d 310 (4th Cir.) (cert. denied,
129 S. Ct. 663 (2008), finding that “[e]vidence of a buy-sell
transaction coupled with a substantial quantity of drugs, would
support a reasonable inference that the parties were
coconspirators.” Id. at 317 (internal quotation marks,
alteration and citation omitted). Similarly, continued
relationships and repeated drug transactions between parties are
indicative of a conspiracy, particularly when the transactions
involve substantial amounts of drugs. Id.At trial, several witnesses described Parker’s
purchases and sales of substantial quantities of cocaine. One
witness estimated that he distributed approximately ninety to
100 kilograms of cocaine to Parker over a ten-year period.
Though this witness was acting as a confidential informant
during part of that time, and thus was incapable of being party
to a conspiracy, the witness testified about conversations held
between Parker and others, in which Parker arranged to sell the
drugs he was getting from the witness. Another witness
testified that he supplied Parker with dozens of kilograms of
cocaine per year between 1992 and 1996, and then another eight
to nine kilograms between 2003 and 2006. A third witness
testified that he repeatedly bought quantities of crack and
powder cocaine from Miller, which he then sold to other
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individuals. Accordingly, we find that the continued, lengthy
relationships between Parker and the testifying parties,
combined with the substantial quantity of drugs involved, was
more than sufficient to support Parker’s conviction for
conspiracy to distribute or possess with intent to distribute
cocaine.
II. Promises of Leniency to Testifying Witnesses
Section 201(c)(2), 18 U.S.C. prohibits “directly or
indirectly[] giv[ing], offer[ing], or promis[ing] anything of
value to any person, for or because of the testimony under oath
or affirmation given or to be given by such person as a witness
upon a trial, hearing, or other proceeding, before any court.”
Parker contends that the Government violated 18 U.S.C.
§ 201(c)(2) by promising leniency or favorable treatment to
witnesses in exchange for their testimony. We explicitly
rejected this argument in United States v. Richardson, 195 F.3d
192, 197 (4th Cir. 1999) (“[T]he government does not violate
§ 201(c)(2) by granting immunity or leniency or entering into
plea agreements to obtain testimony”.). Accordingly, Parker’s
contention is foreclosed by Circuit authority.
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III. Reasonableness of Sentence
Finally, Parker contends that his sentence is
unreasonable. As noted by the Supreme Court, “[r]egardless of
whether the sentence imposed is inside or outside the
[g]uidelines range, the appellate court must review the sentence
under an abuse-of-discretion standard.” Gall v. United States,
128 S. Ct. 586, 597 (2007). We review sentences for
reasonableness. Id. at 594, 597. Reasonableness review
requires appellate consideration of both the procedural and
substantive reasonableness of a sentence. Id. at 597.
In determining procedural reasonableness, we first
assess whether the district court properly calculated the
defendant’s advisory guidelines range. Gall, 128 S. Ct. at 596-
97. We then determine whether the district court failed to
consider the 18 U.S.C. § 3553(a) (2006) 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, including the extent of any variance from the
[g]uidelines range.’” Pauley, 511 F.3d at 473 (quoting Gall,
128 S. Ct. at 597).
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We afford sentences that fall within the properly
calculated guidelines range a presumption of reasonableness.
See Gall, 128 S. Ct. at 597. Such a presumption can be rebutted
only by showing “that the sentence is unreasonable when measured
against the § 3553(a) factors.” United States v. Montes-Pineda,
445 F.3d 375, 379 (4th Cir. 2006) (internal quotation marks and
citation omitted).
Here, Parker concedes there were no procedural errors
in the sentencing and the district court correctly calculated
the guideline range. Further, contrary to Parker’s assertions,
the record reflects that the district court was exceedingly
thorough in its substantive analysis of the § 3553(a) factors.
The district court judge explicitly considered, on the record,
18 U.S.C. § 3553(a)(1), (2), (3), and (4) in their entirety
before imposing the sentence. The district court’s analysis was
well-reasoned and extensive. That Parker subjectively believes
the district court gave insufficient weight to possible
mitigating factors, is insufficient to overcome either the
appellate presumption of reasonableness attributable to a
sentence within the guidelines range or the substantive
reasonableness apparent from the district court’s analysis and
application of the § 3553(a) factors when sentencing Parker.
Therefore, we find that the district court did not abuse its
discretion in sentencing Parker.
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Accordingly, we affirm the judgment of the district
court. 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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