United States v. Butler ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4499
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JOHNNIE BUTLER,
Defendant – Appellant.
No. 10-4566
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
CALVIN WRIGHT, a/k/a Turkey,
Defendant – Appellant.
Appeals from the United States District Court for the District
of Maryland, at Baltimore. Benson Everett Legg, District Judge.
(1:08-cr-00381-BEL-1; 1:08-cr-00381-BEL-2)
Submitted: May 2, 2011 Decided: May 18, 2011
Before MOTZ, SHEDD, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas J. Saunders, Baltimore, Maryland; James Wyda, Federal
Defender, Meghan S. Skelton, Staff Attorney, Greenbelt,
Maryland, for Appellants. Rod J. Rosenstein, United States
Attorney, Christine Celeste, Special Assistant United States
Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Johnnie Butler and Calvin Wright appeal their
convictions following a jury trial. Both men were convicted of
conspiracy to distribute and possess with intent to distribute
controlled substances, in violation of 21 U.S.C. § 846 (2006)
(Count One); possession of a firearm in furtherance of a
drug-trafficking crime, in violation of 18 U.S.C.
§ 924(c)(1)(A)(i) (2006) (Count Three); and possession of a
firearm after a felony conviction, in violation of 18 U.S.C.
§ 922(g) (2006) (Count Four). Additionally, Wright was
convicted of possession of heroin, with intent to distribute, in
violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) (2006) (Count
Five). The court sentenced Butler to life imprisonment and
Wright to 420 months’ imprisonment. We affirm.
Wright argues that the evidence was not sufficient to
support the jury’s finding that he possessed the heroin found in
his apartment. This court reviews 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). Our review of the evidence convinces us that
the evidence adduced at trial was sufficient to establish that
Wright possessed the heroin and intended to distribute it.
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Wright and Butler argue that the district court erred
in denying their motion for a mistrial after a court security
officer made comments to the jury regarding the origin of a
firearm. “[D]enial of a defendant’s motion for a mistrial is
within the sound discretion of the district court and will be
disturbed only under the most extraordinary of circumstances.”
United States v. Dorlouis, 107 F.3d 248, 257 (4th Cir. 1997).
Given the brief nature of the comments at issue here and the
curative instruction given by the court, we find that the
district court did not abuse its discretion in denying
Appellants’ motion for a mistrial.
Butler argues that because the jury acquitted him of
possession and discharge of a firearm, causing the death of
Fernando Rodriguez, in furtherance of a drug-trafficking crime,
the court erred by taking that conduct into account during
Butler’s sentencing. However, conduct for which a defendant has
been acquitted may nonetheless be considered by the district
court in determining a sentence, so long as the conduct is
established by a preponderance of the evidence. United
States v. Young, 609 F.3d 348, 357 (4th Cir. 2010). Here, the
Government provided sufficient evidence upon which the district
court could base its finding that Butler had caused Rodriguez’s
death by a preponderance of the evidence, even if such evidence
was not sufficient to establish the offense charged beyond a
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reasonable doubt. Accordingly, the court did not err in taking
such conduct into account during sentencing.
Finally, Butler argues that the district court erred
in finding that Butler was an organizer or leader of the
criminal activity, pursuant to U.S. Sentencing Guidelines Manual
§ 3B1.1, and accordingly applying a sentencing enhancement. We
review this determination for clear error. See United States v.
Slade, 631 F.3d 185, 188 (4th Cir. 2011); United States v.
Kellam, 568 F.3d 125, 147-48 (4th Cir. 2009). We find that the
district court did not clearly err because the enhancement is
supported by evidence in the record.
We therefore affirm the convictions and sentences of
Butler and Wright. We deny Wright’s motion to file a pro se
supplemental brief and deny Butler’s motion for summary
reversal. 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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