United States v. Vladimir Mazur , 571 F. App'x 234 ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4605
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
VLADIMIR PETROVICH MAZUR, a/k/a Vladimir Mazur,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg. Glen E. Conrad, Chief
District Judge. (5:12-cr-00011-GEC-6)
Submitted: April 29, 2014 Decided: May 14, 2014
Before WYNN and FLOYD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part; vacated and remanded by unpublished per curiam
opinion.
David L. Parker, DAVID L. PARKER, PC, Harrisonburg, Virginia,
for Appellant. Timothy J. Heaphy, United States Attorney,
Harrisonburg, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A federal jury convicted Vladimir Petrovich Mazur of
conspiracy to distribute 100 grams of heroin, in violation of 21
U.S.C. § 846 (2012); stealing firearms from a licensed dealer,
in violation of 18 U.S.C. § 922(u) (2012); possession of stolen
firearms, in violation of 18 U.S.C. § 922(j) (2012); and use of
a firearm in furtherance of a drug trafficking offense, in
violation of 18 U.S.C. § 924(c) (2012). The district court
sentenced Mazur to a total of 141 months of imprisonment and he
now appeals. For the reasons that follow, we affirm Mazur’s
convictions but vacate the sentence and remand for resentencing.
Mazur first argues on appeal that the district court
erred in denying his motion to suppress statements of his
codefendant that the Government first disclosed during trial.
“In reviewing a district court’s ruling on a motion to suppress,
we review factual findings for clear error, and its legal
conclusions de novo.” United States v. Cain, 524 F.3d 477, 481
(4th Cir. 2008) (citation omitted); see also United States v.
Caro, 597 F.3d 608, 616 (4th Cir. 2010) (reviewing an alleged
Brady * violation de novo). When the district court has denied a
defendant’s suppression motion, we construe the evidence in the
*
Brady v. Maryland, 373 U.S. 83 (1963).
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light most favorable to the government. United States v.
Grossman, 400 F.3d 212, 216 (4th Cir. 2005).
In order to establish a Brady violation, Mazur must
demonstrate that the evidence at issue is favorable to him,
either because it is exculpatory or impeaching; that the
evidence was suppressed by the government; and that he was
prejudiced by that suppression. Strickler v. Greene, 527 U.S.
263, 281-82 (1999). Favorable evidence is material if the
defendant can demonstrate a reasonable probability that, had the
evidence been disclosed, the outcome of the proceeding would
have been different. Caro, 597 F.3d at 619. We have thoroughly
reviewed the record and conclude that the district court did not
err in denying Mazur’s motion to suppress the statements.
Mazur next argues that the Government failed to
present sufficient evidence to support the conviction for the
drug conspiracy. We review a district court’s decision to deny
a Fed. R. Crim. P. 29 motion for a judgment of acquittal de
novo. United States v. Smith, 451 F.3d 209, 216 (4th Cir.
2006). A defendant challenging the sufficiency of the evidence
faces a heavy burden. United States v. Beidler, 110 F.3d 1064,
1067 (4th Cir. 1997). The verdict of a jury must be sustained
“if, viewing the evidence in the light most favorable to the
prosecution, the verdict is supported by ‘substantial
evidence.’” Smith, 451 F.3d at 216 (citations omitted).
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Substantial evidence is “evidence that a reasonable finder of
fact could accept as adequate and sufficient to support a
conclusion of a defendant’s guilt beyond a reasonable doubt.”
Id. (internal quotation marks and citation omitted).
Furthermore, “[t]he jury, not the reviewing court, weighs the
credibility of the evidence and resolves any conflicts in the
evidence presented.” Beidler, 110 F.3d at 1067 (internal
quotation marks and citation omitted). “Reversal for
insufficient evidence is reserved for the rare case where the
prosecution’s failure is clear.” Id. (internal quotation marks
and citation omitted).
In order to prove that Mazur conspired to distribute
heroin, the Government needed to show (1) an agreement between
two or more persons, (2) that Mazur knew of the agreement, and
(3) that Mazur knowingly and voluntarily joined the conspiracy.
United States v. Burgos, 94 F.3d 849, 857 (4th Cir. 1996) (en
banc). However, the Government was not required to make this
showing through direct evidence. In fact, “a conspiracy may be
proved wholly by circumstantial evidence,” and therefore may be
inferred from the circumstances presented at trial. Id. at 858
(citations omitted). Moreover, while evidence of a buyer-seller
relationship alone is insufficient to establish a conspiracy,
such evidence “is at least relevant (i.e. probative) on the
issue of whether a conspiratorial relationship exists.” United
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States v. Hackley, 662 F.3d 671, 679 (4th Cir. 2011) (internal
quotation marks and citation omitted). With these principles in
mind, we conclude that while there was not overwhelming evidence
of Mazur’s participation in the conspiracy, the Government
presented sufficient evidence from which the jury could conclude
that Mazur was guilty of the conspiracy offense. See Hackley,
662 F.3d at 675-81.
Mazur also challenges his sentence on appeal. Mazur
argues that the district court erred in declining to reduce his
offense level for his minor role in the conspiracy, and that the
court erred in calculating the drug weight under the Guidelines.
In reviewing the district court’s calculations under the
Guidelines, “we review the district court’s legal conclusions de
novo and its factual findings for clear error.” United
States v. Manigan, 592 F.3d 621, 626 (4th Cir. 2010) (internal
quotation marks and citation omitted); see also United States v.
Hicks, 948 F.2d 877, 882 (4th Cir. 1991) (“The calculation of
the amount of drugs which results in the establishment of the
base offense level is a factual determination subject to review
only for clear error.”) (citation omitted). We will “find clear
error only if, on the entire evidence, we are left with the
definite and firm conviction that a mistake has been committed.”
Manigan, 592 F.3d at 631 (internal quotation marks and citation
omitted).
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A defendant who is only a “minor participant” in a
criminal activity may have his offense level reduced by two
levels. U.S. Sentencing Guidelines Manual (“USSG”) § 3B1.2(b)
(2012). This applies to a defendant who is “substantially less
culpable than the average participant,” “but whose role could
not be described as minimal.” USSG § 3B1.2(b), cmt. n.3(A) &
n.5. In deciding whether the defendant played a minor role, the
“critical inquiry is thus not just whether the defendant has
done fewer bad acts than his co-defendants, but whether the
defendant’s conduct is material or essential to committing the
offense.” United States v. Pratt, 239 F.3d 640, 646 (4th Cir.
2001) (internal quotation marks and citation omitted). The
defendant has the burden of showing by a preponderance of the
evidence that he played a minor role in the offense. United
States v. Akinkoye, 185 F.3d 192, 202 (4th Cir. 1999). We have
thoroughly reviewed the record and conclude that the district
court did not clearly err in denying a reduction in offense
level for a minor role.
With respect to the drug weight, “[w]here there is no
drug seizure or the amount seized does not reflect the scale of
the offense, the court shall approximate the quantity of the
controlled substance.” USSG § 2D1.1 cmt. n.5. “For sentencing
purposes, the government must prove the drug quantity
attributable to a particular defendant by a preponderance of the
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evidence.” United States v. Bell, 667 F.3d 431, 441 (4th Cir.
2011) (citation omitted). In addition, a district court must
provide an adequate explanation of its drug weight calculation,
to allow for meaningful appellate review, “such that the
appellate court need ‘not guess at the district court’s
rationale.’” Id. at 442 (quoting United States v. Carter, 564
F.3d 325, 220 (4th Cir. 2009)). We conclude that the court
failed to provide a sufficient explanation for its drug weight
calculation to provide for meaningful appellate review. The
court failed to explain how it arrived at the amount of heroin
attributable to Mazur at the sentencing hearing, deferring
instead to the presentence report (to which the parties
objected), which similarly failed to specify the factual support
for the amount of heroin attributed to Mazur.
Accordingly, we affirm Mazur’s convictions, but vacate
the sentence and remand for further proceedings consistent with
this opinion. 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 IN PART;
VACATED AND REMANDED
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