United States v. Coles ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 03-4006
DERWIN COLES, a/k/a Woods,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
John T. Copenhaver, Jr., District Judge.
(CR-01-254)
Submitted: June 30, 2003
Decided: July 31, 2003
Before LUTTIG, WILLIAMS, and TRAXLER, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Jacqueline A. Hallinan, HALLINAN LAW OFFICE, Charleston,
West Virginia, for Appellant. Kasey Warner, United States Attorney,
Travis N. Gery, Assistant United States Attorney, Charleston, West
Virginia, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Derwin Coles appeals from the judgment of the district court sen-
tencing him to 248 months imprisonment following his convictions
for conspiracy to distribute cocaine base; aiding and abetting the dis-
tribution of cocaine base; and aiding and abetting the possession of
firearms in the furtherance of a drug conspiracy, in violation of 18
U.S.C. §§ 2, 924(c) (2000) & 21 U.S.C. §§ 841, 846 (2000). Coles
asserts that the district court erred in excluding certain evidence,
denying his motion for new trial, and determining his offense level
under the sentencing guidelines. We affirm.
Coles first claims that the district court erred in excluding the tran-
script of a co-defendant's plea colloquy. At trial, Coles offered the
transcript as prior sworn testimony under Fed. R. Evid. 804(b)(1).
Former testimony is admissible in a proceeding if the declarant is
unavailable, and the party against whom it is offered has had the
opportunity to subject the testimony to meaningful cross-examination.
See Fed. R. Evid. 804(b)(1). In this instance, the proffered testimony
related to the factual basis in support of a guilty plea at a hearing con-
ducted pursuant to Fed. R. Crim. P. 11, and there is no evidence that
the Government was given the opportunity to subject the testimony
to cross-examination. Absent this opportunity, the district court did
not abuse its discretion in excluding the transcript.*See United States
v. Young, 248 F.3d 260, 266 (4th Cir.), cert. denied, 533 U.S. 961(2001) (stating standard of review).
Coles next claims that the district court erred in denying his motion
for a new trial on the basis that the Government exercised undue
influence over co-defendant Melissa Ross. A defendant's due process
right to present witnesses necessary to his defense may be violated if
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*We note that Coles also suggests the transcript was admissible as a
statement against interest pursuant to Fed. R. Evid. 804(b)(3). Because
the evidence was not offered under this exception to the hearsay rule at
trial, we review this claim for plain error, and we find none. See United
States v. Olano, 507 U.S. 725, 732-34 (1993) (holding that error not pre-
served at trial is reviewed using plain error analysis).
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Government intimidation of a witness amounts to "substantial govern-
ment interference with a defense witness' free and unhampered
choice to testify." United States v. Saunders, 943 F.2d 388, 392 (4th
Cir. 1991) (citation and internal quotation omitted); see also United
States v. MacCloskey, 682 F.2d 468, 479 (4th Cir. 1982). We have
reviewed the relevant portions of the record, including the parties'
descriptions of the events, and conclude that the Government's
actions did not amount to the exercise of undue influence in violation
of the Due Process Clause. Accordingly, we deny this claim.
Coles also claims that the testimony of John Montgomery and Wil-
liam Morris was inherently unreliable and suggests that the district
court erred in denying him a new trial. "The jury, not the reviewing
court, weighs the credibility of the evidence and resolves any con-
flicts in the evidence presented." United States v. Murphy, 35 F.3d
143, 148 (4th Cir. 1994). Moreover, Coles does not direct this court
to a single piece of controverted evidence. Instead he simply claims
that the testimony of the witnesses was "obviously false." Such an
unsupported claim is not actionable on appeal.
Coles next asserts that the district court erred to the extent that it
considered the testimony of Lori Corns in calculating Coles' base
offense level. The district court attributed 4.5 grams of 148.541 grams
of relevant conduct to the testimony presented by Corns. Even if
Coles could demonstrate that attribution of the 4.5 grams of relevant
conduct was error, he can show no prejudice. The base offense level
used by the district court was thirty-two, encompassing a range of rel-
evant conduct from fifty to 150 grams of cocaine base. See U.S. Sen-
tencing Guidelines Manual § 2D1.1(c) (2002). As a consequence, if
the 4.5 grams was deducted from the relevant conduct attributable to
Coles, he still would fall well within offense level thirty-two, and any
potential error would be harmless. See Fed. R. Crim. P. 52(a); United
States v. Ashers, 968 F.2d 411, 414 (4th Cir. 1992). We deny this
claim.
Coles next claims that the district court erred in applying a four-
level enhancement based on his leadership role in a criminal activity
involving five or more persons. See USSG § 3B1.1(a). Cole asserts it
was improper for the district court to rely on the existence of a fifth
co-conspirator that it was unable to identify. We have reviewed the
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district court's finding in regard to the existence of a fifth participant
in the narcotics distribution scheme and find it to be entirely reason-
able. Moreover, Coles points to no authority requiring the identifica-
tion of each of the five members of the criminal activity as noted
within the sentencing guidelines. Accordingly, we find that the dis-
trict court did not clearly err in applying the enhancement. See United
States v. Carter, 300 F.3d 415, 426 (4th Cir.) (stating standard of
review), cert. denied, 123 S. Ct. 614 (2002).
Coles asserts that the Government failed to demonstrate his
involvement as a leader of the criminal enterprise. We disagree. Sev-
eral witnesses testified as to Coles' role as the leader of the enterprise.
Coles purchased cocaine base in large quantities and distributed it
repeatedly through Melissa Ross and her brother, Eric Ross. In light
of this evidence, we cannot conclude that the district court clearly
erred in its application of the enhancement. See id.We affirm the judgment of the district court. We dispense with oral
argument because the facts and legal contentions are adequately pre-
sented in the materials before the court and argument would not aid
the decisional process.
AFFIRMED
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