United States v. Norman L. Talley , 449 F. App'x 301 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4232
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
NORMAN L. TALLEY, a/k/a Storm,
Defendant – Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington. Robert C. Chambers,
District Judge. (3:10-cr-00038-1)
Submitted: September 26, 2011 Decided: October 11, 2011
Before WILKINSON, AGEE, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
John H. Tinney, Jr., THE TINNEY LAW FIRM, PLLC, Charleston, West
Virginia, for Appellant. R. Booth Goodwin, II, United States
Attorney, Joseph F. Adams, Special Assistant United States
Attorney, Huntington, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Following a two-day trial, a jury convicted Norman L.
Talley of conspiracy to distribute fifty grams or more of crack
cocaine and a quantity of heroin, in violation of 21 U.S.C.
§§ 841(a), 846 (2006) (Count One), possession with intent to
distribute fifty grams or more of crack cocaine, in violation of
21 U.S.C. § 841(a) (2006) (Count Two), possession with intent to
distribute a quantity of heroin, in violation of 21 U.S.C.
§ 841(a) (Count Three), and being a felon in possession of a
firearm, in violation of 18 U.S.C. §§ 922(g), 924(a)(2) (2006)
(Count Four). The district court sentenced Talley to a total of
210 months in prison. We affirm.
Talley first contends that the district court erred in
denying his motion to suppress the evidence seized in the search
of his trailer. Talley claims that the warrant was facially
invalid as it failed to comport with the Fourth Amendment
particularity requirements. This court reviews the factual
findings underlying a denial of a motion to suppress for clear
error and the legal conclusions de novo. United States v.
Blake, 571 F.3d 331, 338 (4th Cir. 2009). Where, as here, the
district court denied the motion to suppress, the evidence is
reviewed in the light most favorable to the government. United
States v. Hernandez-Mendez, 626 F.3d 203, 206 (4th Cir. 2010),
cert. denied, 131 S. Ct. 1833 (2011).
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The Fourth Amendment requires that warrants: (1) be
issued by a neutral, detached magistrate, (2) contain a
particularized description of the place to be searched and
persons or things to be seized, and (3) be based on probable
cause, supported by oath or affirmation. United States v.
Clyburn, 24 F.3d 613, 617 (4th Cir. 1994). The requirement for
particularity “ensures that the search will be carefully
tailored to its justifications, and will not take on the
character of the wide-ranging exploratory searches the Framers
intended to prohibit.” Maryland v. Garrison, 480 U.S. 79, 84
(1987). The particularity requirement is satisfied when an
officer in possession of a search warrant describing a
particular place to be searched can reasonably ascertain and
identify the intended place to be searched and the items to be
seized. Steele v. United States, 267 U.S. 498, 503 (1925).
This court has approved a warrant’s cross-reference to attached
documents, such as the two documents attached and incorporated
by reference in this case. United States v. Hurwitz, 459 F.3d
463, 470-71 (4th Cir. 2006). Our review of the record leads us
to conclude that the warrant satisfied the Fourth Amendment
requirements, and therefore, the district court did not err in
denying Talley’s motion to suppress.
Talley next contends that the evidence was
insufficient to support a finding of guilt as to each of his
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counts of conviction. 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).
“A defendant challenging the sufficiency of the evidence faces a
heavy burden.” United States v. Foster, 507 F.3d 233, 245 (4th
Cir. 2007). A jury verdict must be sustained if, viewing the
evidence in the light most favorable to the government, the
verdict is supported by substantial evidence. Hickman, 626 F.3d
at 763. “[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.” Id. (internal quotation marks omitted). We, as an
appellate court, cannot make credibility determinations and must
assume the jury resolved all testimonial contradictions in the
government’s favor. United States v. Pennigraft, 641 F.3d 566,
572 (4th Cir. 2011). “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).
To prove a conspiracy charge under 21 U.S.C. § 846,
the government must establish (1) an agreement between the
defendant and at least one other person to engage in conduct
violating a federal drug law; “(2) the defendant’s knowledge of
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the conspiracy; and (3) the defendant’s knowing and voluntary
participation in the conspiracy.” Hickman, 626 F.3d at 763(internal quotation marks omitted). A thorough review of the
record indicates that the evidence, primarily consisting of
extensive testimony from Talley’s codefendant and Talley’s
customers, as well as physical evidence recovered from the
search, was sufficient to convict Talley of conspiracy to
possess with intent to distribute both cocaine base and heroin.
Next, Talley argues that his convictions for
possession with intent to distribute crack cocaine and heroin
were not supported by sufficient evidence. With respect to
Counts Two and Three, the government was required to prove
“(1) possession of the controlled substance; (2) knowledge of
the possession; and (3) intent to distribute.” United States v.
Hall, 551 F.3d 257, 267 n.10 (4th Cir. 2009). We conclude that
the same evidence that supports Count One suffices to support a
finding of guilt on Counts Two and Three.
Talley also challenges the evidentiary sufficiency of
his conviction for possession of a firearm by a convicted felon.
To support such a conviction under 18 U.S.C. § 922(g)(1), the
government must prove the following elements: “(1) the defendant
previously had been convicted of a [felony]; (2) the defendant
knowingly possessed . . . the firearm; and (3) the possession
was in or affecting commerce, because the firearm had traveled
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in interstate or foreign commerce at some point during its
existence.” United States v. Moye, 454 F.3d 390, 394-95 (4th
Cir. 2006) (en banc). Our review of the record reveals that the
Government presented evidence sufficient to satisfy all three
elements of the crime, and therefore sufficient to support a
finding of guilt.
Lastly, Talley contends that the district court erred
in applying the enhanced sentencing provisions of 21 U.S.C.
§ 851 because some of the documentation relating to Talley’s
prior convictions was unavailable. Because the district court
sentenced Talley pursuant to 21 U.S.C. § 841(b)(1)(B) as amended
by the Fair Sentencing Act of 2010, which has only one level of
enhancement for one prior qualifying conviction, and because one
of the prior convictions cited by the Government in its 21
U.S.C. § 851 amended information is not subject to challenge on
account of its age, § 851(e), this claim is unavailing even if
Talley’s challenge to the validity of his second prior
conviction is credited.
Accordingly, we 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 would not aid the decisional
process.
AFFIRMED
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