United States v. Davis , 406 F. App'x 683 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4254
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL FREDDIE DAVIS,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., District Judge. (1:07-cr-00320-WO-1)
Submitted: November 30, 2010 Decided: December 28, 2010
Before WILKINSON, MOTZ, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James B. Craven, III, Durham, North Carolina, for Appellant.
Angela Hewlett Miller, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael F. Davis was convicted after a jury trial of
distribution of 4.9 grams of cocaine base, in violation of 21
U.S.C. §§ 841(a)(1), (b)(1)(c) (2006). Davis was sentenced as a
career offender to 225 months’ imprisonment. Davis’s counsel
has filed a brief pursuant to Anders v. California, 386 U.S. 738(1967), asserting that there are no meritorious issues for
appeal, but questioning whether the district court violated
Davis’s Sixth Amendment right to confront the witnesses against
him by admitting the out-of-court statements of a deceased
confidential informant, and whether the district court erred in
denying Davis’s motions for judgment of acquittal. Davis filed
a pro se supplemental brief rearguing the issues pointed out by
counsel, and filed a supplement to his pro se brief, 1 arguing
that his indictment should have been dismissed because the
Government violated Fed. R. Crim. P. 6(d), and the Interstate
Agreement on Detainers Act, 18 U.S.C. app. 2 (2006). We affirm.
Generally, we review decisions to admit evidence for
abuse of discretion. United States v. Forrest, 429 F.3d 73, 79
(4th Cir. 2005). However, where evidentiary issues relate to an
asserted violation of the Sixth Amendment, the appropriate
1
Davis’s brief is entitled a “Motion for Limited Remand on
Rule 6(d) and Detainer Act Violation Claims,” which we construe
as a supplement to his original pro se brief.
2
standard of review is de novo. United States v. Robinson, 389
F.3d 582, 592 (6th Cir. 2004). The Confrontation Clause of the
Sixth Amendment bars “admission of testimonial statements of a
witness who did not appear at trial unless he was unavailable to
testify, and the defendant had had a prior opportunity for
cross-examination.” Crawford v. Washington, 541 U.S. 36, 53-54
(2004). For a statement to be excludable under the
Confrontation Clause, it must be “testimonial,” United States v.
Udeozor, 515 F.3d 260, 268 (4th Cir. 2008), and offered for the
truth of the matter asserted, Crawford, 541 U.S. at 59 n.9 (the
Confrontation Clause does not bar the use of “testimonial
statements for purposes other than establishing the truth of the
matter asserted”).
Assuming that the statements were testimonial and
offered for the truth of the matters asserted, their improper
admission does not require reversal. Although Davis initially
objected to the admission of the statements, he retracted both
objections in light of the limiting instructions subsequently
provided by the district court. Because Davis acquiesced to the
district court’s proposed solution, his claims now merit at most
only plain error review. See Fed. R. Evid. 103 committee’s
note.
To demonstrate plain error, Davis must show that: (1)
there was an error; (2) the error was plain; and (3) the error
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affected his substantial rights. United States v. Olano, 507
U.S. 725, 732 (1993). Moreover, we reverse only if “the error
seriously affect[ed] the fairness, integrity or public
reputation of judicial proceedings.” Id. (internal quotation
omitted). We have reviewed the record and conclude that Davis
cannot meet this demanding standard.
We review de novo a district court’s denial of a Fed.
R. Crim. P. 29 motion for judgment of acquittal. United States
v. Green, 599 F.3d 360, 367 (4th Cir. 2010). A defendant
challenging the sufficiency of the evidence “bears a heavy
burden.” United States v. Beidler, 110 F.3d 1064, 1067 (4th
Cir. 1997) (internal quotation marks omitted). A jury verdict
must be sustained “if, viewing the evidence in the light most
favorable to the prosecution, the verdict is supported by
‘substantial evidence.’” United States v. Smith, 451 F.3d 209,
216 (4th Cir. 2006). 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 omitted).
“[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
omitted). “Reversal for insufficient evidence is reserved for
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the rare case where the prosecution’s failure is clear.” Id.(internal quotation marks omitted).
To prove that Davis distributed cocaine base, the
Government had to show that Davis: (1) “knowingly or
intentionally distributed a controlled substance stated in the
indictment; and (2) at the time of such distribution knew that
the substance distributed was a controlled substance under the
law.” United States v. Alerre, 430 F.3d 681, 689 (4th Cir.
2005). To distribute a controlled substance means to deliver
it; delivery, in turn, is “the actual, constructive, or
attempted transfer of a controlled substance.” United States v.
Washington, 41 F.3d 917, 919 (4th Cir. 1994) (internal quotation
marks and citation omitted). After reviewing the record, we
conclude that there was sufficient evidence from which the jury
could conclude that Davis was guilty beyond a reasonable doubt
of distributing cocaine base.
We also conclude that Davis’s sentence is reasonable.
We review a sentence for abuse of discretion. Gall v. United
States, 552 U.S. 38, 51 (2007). The first step in this review
requires us to ensure that the district court committed no
significant procedural error. United States v. Evans, 526 F.3d
155, 161 (4th Cir. 2008). Significant procedural errors include
“‘failing to calculate (or improperly calculating) the
Guidelines range’” or “‘failing to consider the § 3553(a)
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factors.’” United States v. Carter, 564 F.3d 325, 329 (4th Cir.
2009) (quoting Gall, 552 U.S. at 51.). We then consider the
substantive reasonableness of the sentence, taking into account
the totality of the circumstances. Id. When reviewing a
sentence on appeal, we presume a sentence within the Guideline
range is reasonable. United States v. Allen, 491 F.3d 178, 193
(4th Cir. 2007). We have reviewed the record and conclude that
the district court did not abuse its discretion in sentencing
Davis and that his sentence in the middle of the Guidelines
range is reasonable.
We have reviewed Davis’s pro se claims and conclude
that the issues he raises that are cognizable on direct appeal
do not entitle him to relief. 2
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm Davis’s conviction and sentence.
This court requires that counsel inform Davis in writing of his
right to petition the Supreme Court of the United States for
further review. If Davis requests that a petition be filed, but
counsel believes that such a petition would be frivolous, then
2
We decline to consider on direct appeal Davis’s claims
that he was not afforded effective assistance of trial counsel.
See, e.g., United States v. Benton, 523 F.3d 424, 435 (4th Cir.
2008).
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counsel may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Davis. 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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