United States v. Earl Glenn, Jr. , 541 F. App'x 336 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4965
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
EARL GLENN, JR.,
Defendant – Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Rock Hill. Cameron McGowan Currie, District
Judge. (0:11-cr-00519-CMC-1)
Submitted: August 13, 2013 Decided: October 10, 2013
Before MOTZ, KING, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mario A. Pacella, STROM LAW FIRM, LLC, Columbia, South Carolina,
for Appellant. William N. Nettles, United States Attorney,
Julius N. Richardson, Assistant United States Attorney, OFFICE
OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Earl Glenn, Jr., appeals the mandatory life sentence
imposed on him in the District of South Carolina pursuant to the
recidivist enhancement of 21 U.S.C. § 841(b)(1)(A). Glenn also
asserts that his life sentence is disproportionate under the
Eighth Amendment, challenges the sufficiency of the evidence
supporting his underlying 21 U.S.C. § 846 conviction, and
contends that the district court erred in denying his motion to
suppress. As explained below, we reject each of his contentions
and affirm.
A federal grand jury in South Carolina indicted Glenn on a
charge of conspiring to distribute a quantity of cocaine and 280
grams or more of cocaine base (“crack” or “crack cocaine”), in
contravention of § 846 (“Count One”), plus a charge of
possession with intent to distribute more than five grams of
crack, in violation of 21 U.S.C. § 841(a)(1) (“Count Two”). At
trial, the prosecution maintained that Glenn was involved in a
South Carolina crack cocaine distribution conspiracy that
continued from 2002 to 2010. The evidence included two recorded
controlled sales of crack by Glenn, a search resulting in the
seizure of crack and drug paraphernalia from Glenn’s person, the
testimony of four coconspirators who implicated Glenn in the
conspiracy, his prior guilty pleas and convictions on four
felony drug offenses occurring during the course of the
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conspiracy, as well as Glenn’s confession to the authorities
relating to both federal charges. The jury convicted Glenn on
both counts of the indictment.
The district court thereafter sentenced Glenn to life in
prison on Count One, plus thirty years on Count Two, to be
served concurrently. On Count One, the court relied on the
recidivist enhancement, which mandates a life sentence for an
offender who possesses with intent to distribute more than 280
grams of crack “after two or more prior convictions for a felony
drug offense have become final.” See 21 U.S.C. § 841(b)(1)(A).
By its verdict, the jury found that Glenn was responsible for
more than 280 grams of crack in connection with the conspiracy
charge of Count One. At sentencing, the prosecution
established, with Glenn’s admissions, that he had four prior
convictions for felony drug offenses, two of which were final in
April 2007, and the other two convictions becoming final in
November 2007.
In this appeal, Glenn asserts — for the first time — that
the district court misapplied the recidivist enhancement. Glenn
contends in particular that the enhancement does not apply to
him because, although the jury found him responsible for more
than 280 grams of crack over the eight-year span of the charged
conspiracy, it failed to specifically find that he had conspired
to traffic in more than 280 grams subsequent to his felony drug
3
convictions in November 2007. Absent that precise finding,
Glenn now maintains, the court’s imposition of a mandatory life
sentence cannot be sustained. 1
Because Glenn failed to pursue this contention in the
district court, we may assess only whether the court committed
plain error by invoking the recidivist enhancement to impose the
life sentence on Count One. See United States v. Olano, 507
U.S. 725, 732-36 (1993) (explaining that an unpreserved
contention must be directed to an “error” that is “plain,”
“clear,” or “obvious”; “affect[s] substantial rights”; and
“seriously affect[s] the fairness, integrity, or public
reputation of judicial proceedings”). Applying the plain error
standard, we have recognized that “where we have yet to speak
directly on a legal issue . . . a district court does not commit
plain error by following the reasoning of another circuit.”
United States v. Strieper, 666 F.3d 288, 295 (4th Cir. 2012).
Though we have not yet spoken on the matter, two of our
sister courts of appeals have declined to accept Glenn’s
interpretation of the recidivist enhancement. For example, in
1
Glenn suggests that he should have been sentenced on the
Count One conspiracy under 21 U.S.C. § 841(b)(1)(B), which
provides for a relatively lenient mandatory minimum of ten years
for a defendant who possesses with intent to distribute more
than 28 grams of crack, and who has at least one prior felony
drug conviction.
4
United States v. Walker, the Sixth Circuit confronted the same
contention that Glenn now sponsors and rejected it, explaining:
There is no question that this reasoning has a certain
appeal, as a plausible means to avoid what is a
Draconian sentence. But to follow this route would be
to ignore the logic of a conspiracy charge. While it
is true that the conspiracy came into existence before
the second conviction was final, it is also
indisputably true that Walker continued to be involved
in the conspiracy after both prior convictions were
final. Thus, he committed the crime of conspiracy
throughout the duration of the conspiracy. And
therefore, it must be said that Walker committed the
crime of conspiracy after he had two final felony
drug-offense convictions.
160 F.3d 1078, 1093 (6th Cir. 1998) (internal quotation marks
omitted). Because Walker’s involvement in the charged
conspiracy exceeded the then-threshold amount of 50 grams of
crack, the Sixth Circuit affirmed the district court’s
imposition of the life sentence mandated by the recidivist
enhancement. Id.; see also United States v. Williams, 469 F.3d
963, 967 (11th Cir. 2006) (“We agree with the Sixth Circuit that
the mandatory minimum term of life imprisonment is triggered by
[the defendant’s] continued participation in the conspiracy and
not by the amount of [the controlled substance] he conspired to
distribute and possess with intent to distribute after his
second prior conviction became final.”). Although the decisions
of our sister circuits are not binding precedent for us in the
ordinary sense, they do foreclose, in circumstances such as
these, the conclusion that an error was either plain, clear, or
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obvious. Accordingly, we decline to disturb Glenn’s life
sentence.
Glenn raises three additional contentions on appeal: (1)
that his life sentence on Count One violates the Eighth
Amendment; (2) that the prosecution presented insufficient
evidence to establish his participation in the Count One
conspiracy; and (3) that the district court erred in denying his
motion to suppress the confession. We have carefully reviewed
those assignments of error and conclude, as further explained
below, that they are also without merit.
First, as to the Eighth Amendment claim, that is, the
contention that Glenn’s life sentence is disproportionate to his
conduct, we have recognized that a life sentence for a serial
drug offender does not offend the Constitution. See, e.g.,
United States v. Kratsas, 45 F.3d 63, 68 (4th Cir. 1995)
(affirming mandatory life sentence under recidivism enhancement
for violation of § 846). Second, we are readily satisfied that
there was substantial evidence, when viewed in the light most
favorable to the prosecution, to establish Glenn’s participation
in the charged conspiracy. See United States v. Stewart, 256
F.3d 231, 249 (4th Cir. 2001) (“In evaluating the sufficiency of
the evidence, the jury verdict must be upheld if there exists
substantial evidence . . . to support the verdict, viewing the
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evidence in the light most favorable to the government.”). 2
Finally, affording the factual findings of the district court
the deference they are due, the court did not err in denying
Glenn’s motion to suppress his confession. See United States v.
Blake, 571 F.3d 331, 338 (4th Cir. 2009) (“When reviewing a
denial of a motion to suppress, we review factual findings for
clear error and legal conclusions de novo.”).
Pursuant to the foregoing, we are satisfied to affirm the
judgment of the district court. We dispense with oral argument
because the facts and legal contentions are adequately presented
in the materials before the court and argument of this appeal
would not aid our decisional process.
AFFIRMED
2
Glenn specifically asserts a lack of sufficient evidence
establishing his participation in the charged conspiracy
subsequent to his November 2007 felony drug convictions.
However, the prosecution is not obliged to present evidence of a
conspirator’s active participation throughout the period of a
criminal conspiracy — only that the defendant joined at some
point and did not withdraw. See Smith v. United States, 133 S.
Ct. 714, 717 (2013).
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