United States v. White ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4684
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SHARONE WHITE, a/k/a Junebug,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Richard L. Williams, Senior
District Judge. (3:08-cr-00392-RLW-2)
Submitted: September 22, 2010 Decided: September 30, 2010
Before WILKINSON, NIEMEYER, and AGEE, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Frances H.
Pratt, Amy L. Austin, Assistant Federal Public Defenders,
Richmond, Virginia, for Appellant. Neil H. MacBride, United
States Attorney, Michael A. Jagels, Special Assistant United
States Attorney, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Sharone White appeals his conviction and 70 month
sentence for one count of conspiracy to distribute and possess
with intent to distribute controlled substances in violation of
21 U.S.C. § 846 (2006), and one count of possession with intent
to distribute heroin and aiding and abetting in violation of 21
U.S.C. § 841 (2006) and 18 U.S.C. § 2 (2006).
Counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), and certified that she has
identified no meritorious issues for appeal, with the exception
of the claim that White’s sentence was procedurally unreasonable
because the district court did not offer an adequate explanation
for the sentence. The Government has responded, and White has
filed a pro se supplemental brief. For the reasons that follow,
we affirm in part, vacate in part, and remand.
I. Batson Challenge
White first questions whether the district court erred
in denying his (and his co-defendant, Antoine Robinson’s *) second
*
White and Robinson both appealed their convictions and
sentences, and their appeals were initially consolidated.
Because counsel for White has raised claims on appeal in both an
Anders and traditional format, the appeals have been
deconsolidated.
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challenge made pursuant to Batson v. Kentucky, 476 U.S. 79(1986). After the district court reinstated a juror pursuant to
a Batson challenge, White sought to challenge an earlier strike
that, at the time, had gone unchallenged. The Government argued
the strike was proper because the potential juror was a social
worker and might be more sympathetic to a criminal defendant.
The Equal Protection Clause prohibits the use of
peremptory challenges based solely on race or gender. Batson,
476 U.S. at 86; J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127(1994). Great deference is given to a district court’s
determination of whether a peremptory challenge was based on a
discriminatory motive, and the court’s ruling is reviewed for
clear error. Jones v. Plaster, 57 F.3d 417, 421 (4th Cir.
1995). If, in response to a Batson challenge, the Government
offers a race-neutral explanation for the strike, and the
defendant does not argue the explanation was pretextual, we have
held that the challenge is waived. See Davis v. Baltimore Gas &
Elec. Co., 160 F.3d 1023, 1027 (4th Cir. 1998). Here, no such
argument was raised, and we find the Batson claim was not
preserved. In any event, after review of the record, we
conclude that the district court did not clearly err in failing
to reinstate the stricken member of the venire.
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II. Sufficiency of the Evidence
Counsel questions whether the evidence was sufficient
to convict White of conspiracy to distribute and possess with
intent to distribute heroin. We conclude it was.
“A defendant challenging the sufficiency of the
evidence faces a heavy burden.” United States v. Foster, 507
F.3d 233, 245 (4th Cir. 2007). We review a sufficiency of the
evidence challenge by determining 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). 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. 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. Id. at 245.
To prove conspiracy to distribute and to possess with
intent to distribute a controlled substance, the government must
establish “beyond a reasonable doubt that: ‘(1) an agreement’
to distribute and ‘possess [heroin] with intent to distribute
existed between two or more persons; (2) the defendant knew of
the conspiracy; and (3) the defendant knowingly and voluntarily
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became a part of this conspiracy.’” United States v. Yearwood,
518 F.3d 220, 225-26 (4th Cir.) (quoting United States v.
Burgos, 94 F.3d 849, 857 (4th Cir. 1996) (en banc)), cert.
denied, 129 S. Ct. 137 (2008). Nonetheless, because a
conspiracy is, “[b]y its very nature . . . clandestine and
covert,” proving its existence is often done through
circumstantial evidence “and the context in which the
circumstantial evidence is adduced.” Burgos, 94 F.3d at 857.
Accordingly, the government “need not prove that the defendant
knew the particulars of the conspiracy or all of his
coconspirators” or that his connection to the conspiracy was
anything more than “slight.” Id. at 858, 861. The
“[c]ircumstantial evidence sufficient to support a conspiracy
conviction need not exclude every reasonable hypothesis of
innocence, provided the summation of the evidence permits a
conclusion of guilt beyond a reasonable doubt.” Id. at 858.
We have reviewed the record, and find that the
evidence against White, including a video and audio recording of
White selling heroin to a confidential police informant, was
more than sufficient to sustain the jury’s verdict.
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III. Motion to Strike Expert Testimony
Counsel questions whether the district court erred in
denying White’s motion to strike Alcohol, Tobacco, and Firearms
(“ATF”) Agent Daniel Board’s testimony, which referred to prior
testimony given about the amount of currency found on White’s
person when he was arrested. Board referred to the $2700 in
currency White possessed as indicative of proceeds from a drug
distribution operation.
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, 129 S. Ct. 950 (2009). We will
find that discretion to have been abused only when the district
court acted arbitrarily or irrationally. Id.The record reveals that the arresting officer had
previously testified that White possessed a significant amount
of currency when he was arrested. Although the officer did not
specifically state that White possessed $2700, the officer did
testify that White had “over $2000” when he was arrested. We
conclude that the district court did not abuse its discretion by
denying White’s motion to strike.
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IV. Firearms Enhancement
Counsel next questions whether the district court
erred by applying a two-level increase to White’s offense level
for possession of a firearm. Though White was charged with
firearm offenses, the jury was unable to reach a verdict on
those charges.
An appellate court reviews a sentence for
reasonableness under an abuse-of-discretion standard. Gall v.
United States, 552 U.S. 38, 51 (2007). This review requires
consideration of both the procedural and substantive
reasonableness of a sentence. Id. First, the court must assess
whether the district court properly calculated the guidelines
range, considered the § 3553(a) factors, analyzed any arguments
presented by the parties, and sufficiently explained the
selected sentence. Id. at 49-50; see United States v. Lynn, 592
F.3d 572, 576 (4th Cir. 2010) (“[A]n individualized explanation
must accompany every sentence.”); United States v. Carter, 564
F.3d 325, 330 (4th Cir. 2009) (same). An extensive explanation
is not required as long as the appellate court is satisfied
“‘that [the district court] has considered the parties’
arguments and has a reasoned basis for exercising [its] own
legal decisionmaking authority.’” United States v. Engle, 592
F.3d 495, 500 (4th Cir. 2010) (quoting Rita v. United States,
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551 U.S. 338, 356 (2007)), petition for cert. filed, 78 U.S.L.W.
3764 (U.S. 2010) (No. 09-1512). Even if the sentence is
procedurally reasonable, we must consider the substantive
reasonableness of the sentence, “examin[ing] the totality of the
circumstances to see whether the sentencing court abused its
discretion in concluding that the sentence it chose satisfied
the standards set forth in § 3553(a).” United States v.
Mendoza-Mendoza, 597 F.3d 212, 216 (4th Cir. 2010).
Under U.S. Sentencing Guidelines Manual § 2D1.1(b)(1),
a district court must increase a defendant’s offense level two
levels if the defendant possessed a firearm during a drug
offense. USSG § 2D1.1(b)(1). The enhancement is proper when
“the weapon was possessed in connection with drug activity that
was part of the same course of conduct or common scheme as the
offense of conviction.” United States v. Manigan, 592 F.3d 621,
628-29 (4th Cir. 2010) (internal quotation marks omitted).
Whether the district court properly applied the
enhancement under USSG § 2D1.1(b)(1) is reviewed for clear
error. United States v. McAllister, 272 F.3d 228, 234
(4th Cir. 2001). Under a clear error standard of review, we
will reverse only if “left with the definite and firm conviction
that a mistake has been committed.” United States v. Harvey,
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532 F.3d 326, 336-37 (4th Cir. 2008) (internal quotation marks
omitted).
Here, the record supports the application of the
enhancement. The Government’s informant testified that weapons
were in the house where White and Robinson allegedly distributed
narcotics. When police executed their search warrant on the
house, they discovered four firearms and ammunition. The
district court did not clearly err in determining that a
sufficient link existed between these firearms and the drug
conspiracy that Robinson and White allegedly furthered, and that
the enhancement was proper.
V. Adequate Explanation of Sentence
Counsel for White raises one claim that she submits
should be considered on its merits rather than reviewed under
Anders. Counsel argues that, under Carter and Lynn, the
district court did not provide an adequate statement of reasons
for imposing the sentence it did on White. The Government has
conceded this claim of error, and after reviewing the sentencing
transcript, we concur that the district court did err, and White
preserved that error for appellate review. Accordingly, we
vacate White’s sentence, and remand for a resentencing in light
of Carter and Lynn.
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VI. Pro Se Supplemental Brief
White has filed a pro se supplemental brief in this
court. He reiterates his attorney’s claim that the district
court did not provide an adequate explanation of his sentence
and makes various claims of error under United States v. Booker,
543 U.S. 220 (2005). For the reasons stated above, we agree
that the district court should have provided a more detailed
explanation for White’s sentence, but find his Booker claim
without merit.
Finally, in accordance with Anders, we have reviewed
the record in this case and have found no additional meritorious
issues for appeal. We therefore affirm the district court’s
judgment with respect to White’s conviction. We vacate the
judgment with respect to his sentence, and remand. This court
requires that counsel inform White, in writing, of the right to
petition the Supreme Court of the United States for further
review. If White requests that a petition be filed, but counsel
believes that such a petition would be frivolous, then counsel
may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on White.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
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before the court and argument would not aid the decisional
process.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
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