United States v. Morales , 301 F. App'x 293 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4151
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANDRES MORALES,
Defendant - Appellant.
On Remand from the Supreme Court of the United States.
(S. Ct. No. 07-8902)
Submitted: October 28, 2008 Decided: December 1, 2008
Before NIEMEYER, MICHAEL, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Barron M. Helgoe, VICTOR VICTOR & HELGOE LLP, Charleston, West
Virginia, for Appellant. Charles T. Miller, United States
Attorney, Joshua C. Hanks, Assistant United States Attorney,
Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
On November 13, 2007, this court affirmed Andres
Morales’s conviction and sentence. See United States v.
Morales, 253 F. App’x 287 (4th Cir. 2007) (No. 07-4151). On
June 9, 2008, the Supreme Court granted Morales’s petition for a
writ of certiorari, vacated this court’s judgment and remanded
to this court for further consideration in light of Gall v.
United States, 128 S. Ct. 586 (2007). Having reconsidered
Morales’s sentence in light of Gall and this court’s decisions
interpreting Gall, we find no reversible error. Accordingly, we
affirm.
Andres Morales was convicted by a jury of one count of
conspiracy to distribute methamphetamine, in violation of 21
U.S.C. § 846 (2000). The Presentence Investigation Report
recommended an offense level of forty-two, which included a drug
weight of between 9.92917 and 11.430 kilograms (net weight) as
well as enhancements for possession of a firearm, aggravated
role in the offense, and obstruction of justice. See U.S.
Sentencing Guidelines Manual (“USSG”) §§ 2D1.1(a)(3), (b)(1),
(c)(2); 3B1.1(c); 3C1.1 (2006). Morales was assessed three
criminal history points, placing him in criminal history
category II. The resulting advisory Guidelines range was 360
months to life imprisonment. See USSG Ch. 5, Pt. A (2006)
(sentencing table).
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While Morales agreed with the probation officer’s
calculations, he objected generally to the basis upon which they
were found. The district court, however, overruled Morales’s
objections to the drug weight and enhancements based on a
finding that they were supported by a preponderance of the
evidence. After discussing the relevant 18 U.S.C. § 3553(a)
(2006) factors, the court sentenced Morales to 360 months’
imprisonment.
On appeal, Morales first contends that the district
court erred in admitting expert witness testimony. We review
the admission of expert testimony for an abuse of discretion.
Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999). Before
permitting expert testimony, the district court must determine
that the testimony is both reliable and relevant and will assist
the trier of fact in understanding or determining a fact in
issue in the case. See Daubert v. Merrell Dow Pharms., Inc.,
509 U.S. 579, 592-93 (1993).
Prior to his qualification as an expert witness, Minh
Dang testified that: he was employed for approximately ten years
as a forensic chemist with the Drug Enforcement Administration
(“DEA”); he received a Bachelor of Science degree in
biochemistry from California Polytechnic University and a Master
of Science degree in chemical toxicology from George Washington
University; he completed a nine month training course for the
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analysis of controlled substances, including methamphetamine,
and a course on investigating clandestine methamphetamine
laboratories; during his term of employment with the DEA, he has
chemically analyzed substances to determine whether they contain
a controlled substance, including between 700 and 800 tests
specifically involving methamphetamine; and he has testified
approximately thirty times in prior criminal cases.
Dang’s testimony, which was subjected to vigorous
cross-examination, included the tests used as well as the
protocols performed to assure accuracy. His inability to
respond to some of the detailed questions proffered on cross-
examination is relevant to the weight of Dang’s testimony rather
than to its admissibility. See United States v. Moreland, 437
F.3d 424, 431 (4th Cir. 2006). Thus, we conclude the district
court did not abuse its discretion by admitting Dang’s
testimony.
Morales next contends that several of the district
court’s rulings on evidentiary issues were improper. We review
a district court’s decision regarding the admission or exclusion
of evidence for abuse of discretion. United States v.
Lancaster, 96 F.3d 734, 744 (4th Cir. 1996). Such discretion is
abused only when a district court has acted “arbitrarily or
irrationally.” United States v. Moore, 27 F.3d 969, 974 (4th
Cir. 1994) (internal quotation marks and citation omitted).
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However, evidentiary rulings based on erroneous legal
conclusions are “by definition an abuse of discretion.” United
States v. Turner, 198 F.3d 425, 430 (4th Cir. 1999).
The evidence presented at trial established that
Morales supplied methamphetamine to several distributors in the
southern portion of West Virginia. On one occasion, a
cooperating witness aided investigators by placing a monitored
call to Morales’s cell phone in an effort to schedule a
controlled buy. The buy was ultimately scheduled, and a date
and location were appointed. Dannie Fraley, a co-conspirator,
arrived at the chosen location in Morales’s girlfriend’s
vehicle. Two packages of what was determined to be
methamphetamine were retrieved by officers from the vehicle.
Fraley testified that he was sent by Morales to execute the
deal.
Morales argues that the district court erred by:
(1) excluding testimony regarding Fraley’s niece’s alleged
methamphetamine addiction; (2) admitting testimony from Fraley’s
girlfriend regarding whether Fraley would hide his drug use from
her; (3) admitting a photograph of the interior of Morales’s
girlfriend’s vehicle in which a child’s car seat was visible;
and (4) admitting testimony regarding Morales’s personal life.
He further argues that the district court erred in denying his
post-trial motion for a new trial in light of the cumulative
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effect of these errors. When viewed in the context of the
trial, the district court’s rulings were neither arbitrary nor
irrational. Moreover, even if the rulings were erroneous, such
error would nevertheless be harmless in light of the evidence
adduced at trial to establish Morales’s guilt.
Finally, Morales contends that the imposition of a
sentence within the calculated Guidelines range is unreasonable.
When determining a sentence, the district court must calculate
the appropriate advisory Guidelines range and consider it in
conjunction with the factors set forth in 18 U.S.C. § 3553(a).
Gall, 128 S. Ct. at 596. Appellate review of a district court’s
imposition of a sentence, “whether inside, just outside, or
significantly outside the Guidelines range,” is for abuse of
discretion. Id. at 591. Sentences within the applicable
Guidelines range may be presumed by the appellate court to be
reasonable. United States v. Pauley, 511 F.3d 468, 473 (4th
Cir. 2007).
The district court followed the necessary procedural
steps in sentencing Morales, appropriately treating the
Sentencing Guidelines as advisory, properly calculating and
considering the applicable Guidelines range, and weighing the
relevant § 3553(a) factors. Furthermore, we may presume
Morales’s sentence, which is at the low end of the applicable
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Guidelines range and below the statutory maximum, to be
reasonable.
To the extent Morales continues to maintain his
innocence and argue that his objections to the sentencing
enhancements should have been sustained, the district court
properly found each sentencing factor to be supported by a
preponderance of the evidence. See United States v. Morris, 429
F.3d 65, 72 (4th Cir. 2005). Morales’s challenge to the
testimony presented at sentencing is likewise unavailing, as
witness credibility is the sole province of the factfinder and
will not be reassessed on appeal. See United States v.
Saunders, 886 F.2d 56, 60 (4th Cir. 1989). Thus, we conclude
that the district court did not abuse its discretion in imposing
the chosen sentence.
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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