United States v. Robert Crisp , 460 F. App'x 216 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4088
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROBERT JAMES CRISP,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, District Judge. (5:05-cr-00258-RLV-CH-2)
Submitted: December 13, 2011 Decided: December 27, 2011
Before MOTZ, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Charles R. Brewer, Asheville, North Carolina, for Appellant.
Anne M. Tompkins, United States Attorney, Richard Lee Edwards,
Assistant United States Attorney, Asheville, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Robert James Crisp appeals his conviction and
resulting 168-month custodial sentence. A jury found Crisp
guilty of participating in a conspiracy to manufacture and
possess with intent to distribute methamphetamine in violation
of 21 U.S.C. §§ 841(b)(1)(A), 846 (2006). We affirm.
Crisp first appeals the district court’s denial of his
motion for a new trial without an evidentiary hearing. We
review a district court’s decision to deny an evidentiary
hearing in connection with a new trial motion for an abuse of
discretion. United States v. Smith, 62 F.3d 641, 651 (4th Cir.
1995). To grant a new trial based on newly discovered evidence,
a court usually must find the existence of all five of the
following elements: (1) that the evidence was in fact
discovered after trial; (2) that the facts alleged permit the
court to infer diligence on the part of the movant; (3) that the
newly discovered evidence is more than merely cumulative or
impeaching; (4) that the newly discovered evidence is material
to the issues involved; and (5) that the newly discovered
evidence is of such a nature that it is likely to produce an
acquittal at a new trial. United States v. Robinson, 627 F.3d
941, 948 (4th Cir. 2010). New evidence that bears only on the
credibility of a witness “does not generally warrant the
granting of a new trial,” but “[t]here may be an exceptional
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‘rare case’ that would justify granting a new trial solely on
the basis of impeachment evidence.” United States v. Custis,
988 F.2d 1355, 1359 (4th Cir. 1993).
Here, the district court found that Crisp’s new trial
motion satisfied only the first two elements. We find that the
affidavits supporting Crisp’s motion drew only a tenuous
connection between the alleged misconduct in the investigation
and the testimony at Crisp’s trial. Multiple witnesses
testified to Crisp’s direct involvement in the manufacture of
methamphetamine and none of those witnesses volunteered to
recant their testimony. Without a more direct nexus between the
alleged misconduct and Crisp’s conviction, we conclude that the
district court did not abuse its discretion in declining to hold
an evidentiary hearing on Crisp’s new trial motion. ∗
Crisp mounts several challenges to the district
court’s evidentiary rulings. “We review a trial court’s rulings
on the admissibility of evidence for abuse of discretion, and we
will only overturn an evidentiary ruling that is arbitrary and
irrational.” United States v. Cole, 631 F.3d 146, 153 (4th Cir.
2011) (internal quotation marks omitted). Relevant evidence is
∗
To the extent that Crisp argues on appeal that the
Government violated its duty to turn over favorable evidence as
required by Brady v. Maryland, 373 U.S. 83 (1963), we are not
persuaded.
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generally admissible. Fed. R. Evid. 402. Relevant evidence is
that which has “any tendency to make the existence of any fact
that is of consequence to the determination of the action more
probable or less probable than it would be without the
evidence.” Fed. R. Evid. 401.
Under Fed. R. Evid. 404(b), evidence of other crimes,
wrongs, or acts of a defendant is admissible for limited
purposes. Rule 404(b) “is understood to be a rule of
inclusion,” and permits the admission of evidence of other
crimes or acts except that which tends to prove only criminal
disposition. United States v. Queen, 132 F.3d 991, 994-95 (4th
Cir. 1997). For Rule 404(b) evidence to be admissible, it must
be “(1) relevant to an issue other than the general character of
the defendant; (2) necessary to prove an element of the charged
offense; and (3) reliable.” United States v. Hodge, 354 F.3d
305, 312 (4th Cir. 2004). In addition, acts intrinsic to the
crime charged are not excluded by Rule 404(b). United States v.
Chin, 83 F.3d 83, 87-88 (4th Cir. 1996). Acts are intrinsic to
the charged offense if they are “inextricably intertwined” with
it, are part of a single criminal incident, or are necessary
preliminaries to the charged offense. Id. at 88. Like all
relevant evidence, evidence otherwise admissible under Rule
404(b) “may be excluded if its probative value is substantially
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outweighed by the danger of unfair prejudice,” confusion, or
needless delay. Fed. R. Evid. 403.
Crisp appeals the district court’s rulings permitting
testimony regarding his involvement with using and distributing
cocaine. We do not find that such evidence was unfairly
prejudicial or improperly admitted. The testimony chronicled
Crisp’s entrée into the conspiracy; as such, it was intrinsic to
the charged offense.
Crisp also appeals the district court’s rulings
admitting a photographic exhibit and alleged hearsay testimony.
Testimony sufficiently linked the photograph to the conspiracy
to support its entry into the record. The alleged hearsay was
either admissible as co-conspirators’ statements under Fed. R.
Evid. Fed. R. Evid. 801(d)(2) or was harmless against the
backdrop of the quantum of testimony directly linking Crisp to
the methamphetamine conspiracy.
Crisp lastly raises three challenges to the district
court’s Guidelines calculations at his sentencing hearing. We
review a sentence under a deferential abuse of discretion
standard. Gall v. United States, 552 U.S. 38, 51 (2007). We
assess the procedural reasonableness of the sentence by ensuring
that the district court committed no significant procedural
errors such as failing to calculate or improperly calculating
the Guidelines range. United States v. Boulware, 604 F.3d 832,
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837-38 (4th Cir. 2010). “As a matter of procedure, the district
court must begin its sentencing proceeding ‘by correctly
calculating the applicable Guidelines range. . . . [T]he
Guidelines should be the starting point and the initial
benchmark.’” United States v. Hernandez, 603 F.3d 267, 270 (4th
Cir. 2010) (quoting Gall, 552 U.S. at 49).
We first review the district court’s imposition of the
firearm enhancement pursuant to U.S. Sentencing Guidelines
Manual (“USSG”) § 2D1.1(b)(1) (2006). Testimony established
that Crisp aided in the manufacture of methamphetamine in an
outbuilding and that a rifle hung over the door of the
outbuilding. We do not find that the district court abused its
discretion in finding that the rifle was accessible and in plain
view during Crisp’s participation in the manufacture of
methamphetamine. Moreover, Crisp has failed to demonstrate a
clear improbability that the firearm was connected to the
offense.
We similarly uphold the district court’s imposition of
a three offense level enhancement for the creation of a
substantial risk of harm to human life or the environment.
Crisp claims that no such enhancement existed in the 2006
Guidelines. He is incorrect; the enhancement is found at USSG
§ 2D1.1(b)(8)(B).
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Finally, we review the district court’s approximation
of the drug quantity attributable to Crisp for Guidelines
purposes for clear error. United States v. Carter, 300 F.3d
415, 425 (4th Cir. 2002). The court’s drug quantity finding was
supported by testimony of multiple trial witnesses detailing the
fruits of the methamphetamine conspiracy; thus, we find no clear
error.
Accordingly, we affirm the district court’s judgment.
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 in the decisional process.
AFFIRMED
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