United States v. McCall ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4241
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
HOWARD EDWARD MCCALL,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
District Judge. (3:05-cr-00104-FDW-CH-16)
Submitted: October 27, 2009 Decided: November 20, 2009
Before NIEMEYER, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
David W. Long, POYNER SPRUILL, LLP, Raleigh, North Carolina, for
Appellant. Amy Elizabeth Ray, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Following a lengthy trial, Howard Edward McCall was
convicted by a jury of conspiracy to possess with intent to
distribute and to distribute cocaine and cocaine base, in
violation of 21 U.S.C. § 846 (2006). McCall was sentenced to
the statutory mandatory minimum of 240 months. See 21 U.S.C.A.
§ 841(b)(1)(A) (West 1999 & Supp. 2009) (prescribing twenty-year
minimum for cases involving fifty grams or more of a mixture or
substance containing a detectable amount of cocaine base and a
prior felony drug conviction). Finding no error, we affirm.
Appellate counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), in which he asserts there are
no meritorious issues for appeal but questions whether the
district court erred in denying the Fed. R. Crim. P. 29 motion
for judgment of acquittal and in denying the Fed. R. Crim. P. 33
motion for new trial. McCall filed a pro se supplemental brief,
challenging his sentence. The Government elected not to file a
responsive brief.
Initially, counsel contends that the district court
erred in denying the motion for judgment of acquittal. Counsel
argues that the evidence was insufficient to support the jury’s
verdict. We review de novo the district court’s denial of a
Rule 29 motion for judgment of acquittal. United States v.
Perkins, 470 F.3d 150, 160 (4th Cir. 2006). “In conducting such
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review, we must uphold a jury verdict if there is substantial
evidence, viewed in the light most favorable to the Government,
to support it.” Id. Both direct and circumstantial evidence
are considered, and the government is permitted “all reasonable
inferences that could be drawn in its favor.” United States v.
Harvey, 532 F.3d 326, 333 (4th Cir. 2008). The defendant “must
carry an imposing burden to successfully challenge the
sufficiency of the evidence.” United States v. Martin, 523 F.3d
281, 288 (4th Cir.) (citation omitted), cert. denied, 129 S. Ct.
238 (2008).
With these standards in mind, our thorough review of
the trial transcript convinces us that McCall was involved in
“‘a loosely-knit association of members linked . . . by their
mutual interest in sustaining the overall enterprise of catering
to the ultimate demands of a particular drug consumption
market’” — Mecklenburg County. United States v. Burgos, 94 F.3d
849, 858 (4th Cir. 1996) (en banc) (quoting United States v.
Banks, 10 F.3d 1044, 1054 (4th Cir. 1993)). “[W]hile many
conspiracies are executed with precision, the fact that a
conspiracy is loosely-knit, haphazard, or ill-conceived does not
render it any less a conspiracy — or any less unlawful.” Id.We therefore conclude that there was sufficient evidence to
support the jury’s verdict. See United States v. Yearwood, 518
F.3d 220, 225-26 (4th Cir.) (discussing elements of the
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offense), cert. denied, 129 S. Ct. 137 (2008). To the extent
McCall argues that the Government’s case rested in large part on
the unreliable testimony of the cooperating witnesses, it is not
the province of this court to second-guess the credibility
determinations of the factfinder. See United States v. Wilson,
484 F.3d 267, 283 (4th Cir. 2007).
Counsel also contends that the district court erred in
denying the motion for new trial. We review a district court’s
order granting or denying a motion for new trial under Rule 33
for abuse of discretion. United States v. Fulcher, 250 F.3d
244, 249 (4th Cir. 2001) (stating standard of review and
providing standard). Our review of the record leads us to
conclude that the district court correctly determined the
defendant failed to satisfy each of the Fulcher requirements.
Therefore, the district court did not abuse its discretion in
denying the motion for new trial.
McCall contends in his pro se supplemental brief that
his sentence is unreasonable. When determining a sentence, the
district court must calculate the appropriate advisory
Guidelines range and consider it in conjunction with the factors
set forth in 18 U.S.C. § 3553(a) (2006). Gall v. United States,
552 U.S. 38, __, 128 S. Ct. 586, 596 (2007). Further, the
district court “must place on the record an individualized
assessment [of the § 3553(a) factors] based on the particular
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facts of the case before it.” United States v. Carter, 564 F.3d
325, 330 (4th Cir. 2009) (internal quotation marks and citation
omitted). Appellate review of a district court’s imposition of
a sentence, “whether inside, just outside, or significantly
outside the Guidelines range,” is for abuse of discretion.
Gall, 128 S. Ct. at 591. A sentence within the properly
calculated Guidelines range is presumed reasonable by this
court. United States v. Allen, 491 F.3d 178, 193 (4th Cir.
2007).
The district court followed the necessary procedural
steps in sentencing McCall, appropriately treating the
Guidelines as advisory, properly calculating and considering the
applicable Guidelines range, and applying the § 3553(a) factors
to the facts of the case. McCall’s 240-month sentence, which is
the Guidelines range and the statutory mandatory minimum, is
also presumptively reasonable.
However, McCall argues that the 1995 state conviction
used for enhancement under 21 U.S.C. § 851 (2006) was obtained
in violation of his constitutional protection from double
jeopardy because he was allegedly assessed a “drug tax” in North
Carolina prior to conviction. Since McCall did not challenge
his sentence on this basis in the district court, review is for
plain error. See, e.g., United States v. Miller, 557 F.3d 910,
916 (8th Cir. 2009) (“Procedural sentencing errors are
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forfeited, and therefore may be reviewed only for plain error,
if no objection was raised in the district court.”). To
establish plain error, the defendant must show that an error
occurred, that the error was plain, and that the error affected
the defendant’s substantial rights. United States v. Olano, 507
U.S. 725, 732-34 (1993); United States v. Massenburg, 564 F.3d
337, 342-43 (4th Cir. 2009) (stating defendant bears burden of
establishing each of the plain error requirements). McCall has
failed to establish each of the plain error requirements, which
is his burden. Therefore, we conclude that the district court
did not abuse its discretion in imposing the chosen sentence.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. Accordingly, we affirm the judgment of the district
court. This court requires that counsel inform his client, in
writing, of his right to petition the Supreme Court of the
United States for further review. If the client requests that a
petition be filed, but counsel believes that such a petition
would be frivolous, then counsel may move this court for leave
to withdraw from representation. Counsel’s motion must state
that a copy thereof was served on the client. We dispense with
oral argument because the facts and legal contentions are
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adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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