United States v. Darius Galloway , 459 F. App'x 232 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4843
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DARIUS LAMONT GALLOWAY,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (7:07-cr-00036-F-1)
Submitted: December 7, 2011 Decided: December 22, 2011
Before MOTZ and KEENAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part, vacated in part and remanded by unpublished
per curiam opinion.
Jorgelina E. Araneda, ARANEDA LAW FIRM, Raleigh, North Carolina,
for Appellant. Thomas G. Walker, United States Attorney,
Jennifer P. May-Parker, Kristine L. Fritz, Assistant United
States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Darius Lamont Galloway appeals his convictions and
resulting 360-month sentence following a jury trial for
possession with intent to distribute fifty grams or more of
cocaine, in violation of 21 U.S.C. § 841(a)(1) (2006) (Count
One); possession of a firearm by a felon, in violation of 18
U.S.C. §§ 922(g)(1), 924 (2006) (Count Two); and possession of a
firearm in furtherance of a drug trafficking crime, in violation
of 18 U.S.C. § 924(c) (2006) (Count Three). On appeal, Galloway
contends that the district court erred by (1) overruling his
hearsay objection to officers’ testimony at trial; (2)
calculating his advisory Guidelines range without making a
specific finding as to drug quantities; (3) sentencing him as a
career offender pursuant to the U.S. Sentencing Guidelines
Manual (“USSG”) § 4B1.1(a) (2010); and (4) denying his motion
for a judgment of acquittal as to Count One and Count Three.
While we find no fault with his convictions, in light of our
recent decision in United States v. Simmons, 649 F.3d 237 (4th
Cir. 2011) (en banc), we agree with Galloway that he is no
longer a career offender for sentencing purposes. Accordingly,
we affirm Galloway’s convictions, vacate his sentence, and
remand for resentencing.
We first address Galloway’s arguments on appeal with
respect to his convictions. Galloway contends that the district
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court erred in overruling his hearsay objection to testimony
provided by Detective Little and Sergeant Worthington at trial.
When describing their involvement in the case, both officers
testified that Brent Best, a Government informant, called
Detective Little and stated that Galloway was selling narcotics
from Best’s residence. The district court overruled Galloway’s
hearsay objection, finding that Best’s out of court statement
was not offered for the truth of the matter asserted, but rather
“to show the reason further actions were taken by Mr. Little.”
We review the district court’s evidentiary rulings for
abuse of discretion. United States v. Delfino, 510 F.3d 468,
470 (4th Cir. 2007) (citing United States v. Hedgepeth, 418 F.3d
411, 419 (4th Cir. 2005)). A district court abuses its
discretion when it “acts arbitrarily or irrationally, fails to
consider judicially recognized factors constraining its exercise
of discretion, relies on erroneous factual or legal premises, or
commits an error of law.” Hedgepeth, 418 F.3d at 419. Hearsay
is an out of court statement “offered in evidence to prove the
truth of the matter asserted.” Fed. R. Evid. 801(c). However,
“an out of court statement is not hearsay if it is offered for
the limited purpose of explaining why a government investigation
was undertaken.” United States v. Love, 767 F.2d 1052 (4th Cir.
1985) (internal quotation marks and citation omitted).
Therefore, as the statements were offered to establish why the
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officers went to Best’s home to investigate the possible sale of
narcotics, we find that the district court acted within its
discretion in admitting Detective Little and Sergeant
Worthington’s testimony as non-hearsay.
Galloway next contends that the district court erred
in denying his motion for a judgment of acquittal as to Count
One, possession with intent to distribute cocaine, and Count
Three, possession of a firearm in furtherance of a drug
trafficking crime. We review de novo a district court’s
decision to deny a Rule 29 motion for a judgment of acquittal.
United States v. Hickman, 626 F.3d 756, 762-63 (4th Cir. 2010).
In reviewing the sufficiency of the evidence, this court’s “role
is limited to considering whether there is substantial evidence,
taking the view most favorable to the Government, to support the
conviction.” Delfino, 510 F.3d at 471 (citation omitted).
“[S]ubstantial 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.”
United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en
banc). “Reversal for insufficient evidence is reserved for the
rare case where the prosecution’s failure is clear.” United
States v. Ashley, 606 F.3d 135, 138 (4th Cir.) (internal
quotation marks omitted), cert. denied, 131 S. Ct. 428 (2010).
The record reflects that this is not such a rare case; rather,
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there was ample evidence to support Galloway’s convictions on
Counts One and Three. Accordingly, we affirm Galloway’s
convictions.
We now turn to Galloway’s challenges to his sentence.
We review a sentence imposed by a district court under a
deferential abuse of discretion standard. Gall v. United
States, 552 U.S. 38, 46 (2007). A district court commits
significant procedural error when it improperly calculates a
defendant’s Guidelines range. Id. at 51. Pursuant to USSG §
4B1.1(a), a defendant is designated a career offender if he “has
at least two prior felony convictions of either a crime of
violence or a controlled substance offense.”
Galloway and the Government agree that the district
court erred in sentencing Galloway as a career offender in light
of Simmons. Consistent with this court’s decision in United
States v. Harp, 406 F.3d 242, 246 (4th Cir. 2005), the district
court determined that Galloway qualified as a career offender
based upon his 1999 and 2003 North Carolina convictions for
possession with intent to sell and deliver cocaine, possession
with intent to sell marijuana, and conspiracy to possess with
intent to sell marijuana, as well as his 2001 South Carolina
conviction for possession of marijuana with intent to
distribute. This court recently overruled Harp in its en banc
decision in Simmons, finding that a North Carolina state
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conviction may not be classified as a conviction punishable by a
term of imprisonment exceeding one year based on the maximum
aggravated sentence that could be imposed on a repeat offender
if the individual defendant was not himself eligible for such a
sentence. Simmons, 649 F.3d at 241, 243-48. Our review of the
record reveals that Galloway was not eligible for a sentence
exceeding one year for his North Carolina convictions.
Accordingly, Galloway’s 2001 South Carolina conviction remains
his only felony conviction for a controlled substance offense,
and Galloway no longer has the requisite predicate offenses to
qualify as a career offender.
Galloway next argues that the district court
erroneously calculated his sentencing Guidelines range without
making a specific finding as to the quantity of drugs in his
possession. Galloway’s argument is misplaced. Because the
district court calculated Galloway’s advisory Guidelines range
based upon his career offender status, the court was not
required to make a finding as to drug quantities. See USSG
§ 4B1.1(b). In light of the fact that Galloway is no longer a
career offender, however, the district court upon remand must
determine the drug quantities attributable to Galloway to
calculate his new Guidelines range.
Accordingly, we affirm Galloway’s convictions, vacate
his sentence, and remand for resentencing consistent with
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Simmons. We also deny Galloway’s motion for leave to file a
supplemental brief. 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 IN PART;
VACATED IN PART;
AND REMANDED
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