United States v. Ray , 367 F. App'x 478 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4543
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
EVANS RAY, JR., a/k/a Charlie, a/k/a Chucky, a/k/a Charles
Evans Ray, Jr.,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Alexander Williams, Jr., District
Judge. (8:04-cr-00559-AW)
Submitted: February 2, 2010 Decided: February 26, 2010
Before NIEMEYER, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
J. James Roos, THE LAW OFFICES OF J. JAMES ROOS, III, Towson,
Maryland, for Appellant. Rod J. Rosenstein, United States
Attorney, Robert K. Hur, Assistant United States Attorney,
Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Evans Ray, Jr. appeals his conviction and life
sentence for distribution of 50 grams or more of crack cocaine,
in violation of 21 U.S.C. § 841(a)(1) (2006).* Ray’s counseled
appellate brief raises the following claims: (1) the district
court erred when it denied his Fed. R. Crim. P. 29 motion for
judgment of acquittal; (2) the district court erred when it
rejected one of his proposed jury instructions; and (3) the
district court erroneously believed that it lacked the ability
to impose a sentence of less than life imprisonment, and thus
erred when it sentenced him to life in prison. We find no error
and therefore affirm.
We turn first to Ray’s claim that the district court
should have granted his Rule 29 motion for judgment of
acquittal. We review a district court’s denial of a Rule 29
motion for judgment of acquittal under a de novo standard.
United States v. Midgett, 488 F.3d 288, 297 (4th Cir. 2007). A
guilty verdict must stand “if, viewing the evidence in the light
most favorable to the Government, it is supported by substantial
evidence.” United States v. Alerre, 430 F.3d 681, 693 (4th Cir.
*
Ray was also convicted of possession of ammunition and
firearms by a convicted felon, in violation of 18 U.S.C.
§ 922(g) (2006), and sentenced to 120 months imprisonment for
that crime. On appeal, he does not challenge that conviction or
sentence.
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2005). “Substantial 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.Ray first contends that the district court should have
granted his Rule 29 motion because Ray demonstrated entrapment
as a matter of law. The defense of entrapment has two elements:
“(1) government inducement of the crime and (2) the defendant’s
lack of predisposition to engage in the criminal conduct.”
United States v. Ramos, 462 F.3d 329, 334 (4th Cir. 2006). The
defense uses a burden-shifting scheme, where the defendant bears
the initial burden of presenting evidence that the government
induced him to commit the crime. Once the defendant has done
so, the burden shifts to the government to establish the
defendant’s predisposition beyond a reasonable doubt. United
States v. Jones, 976 F.2d 176, 179 (4th Cir. 1992). Even if the
government did induce a defendant to commit a crime, the defense
of entrapment fails if the government can prove predisposition.
United States v. Squillacote, 221 F.3d 542, 569 (4th Cir. 2000).
Ray argues that the government entrapped him through
its use of a cooperating witness, Timothy Patterson. Ray claims
that at the time of his arrest he was not involved in the drug
trade, and that Patterson convinced him to sell drugs by
appealing to their friendship and recalling how Patterson had
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comforted Ray when Ray’s sister died. Even assuming, as Ray
claims, that Patterson’s appeals induced him to commit the drug
sale, we believe that the district court properly denied Ray’s
Rule 29 motion because the Government introduced substantial
evidence that Ray was predisposed to traffic in narcotics.
For example, Patterson testified that Ray offered to
sell him cocaine in 2001 or 2002 – prior to Patterson’s
cooperation with the Government. Recordings of Patterson’s
conversations with Ray indicate that Ray sold cocaine to other
customers, had multiple sources for the drug, and was familiar
with the code words, slang, practice and prices of the drug
trade. See United States v. Tom, 330 F.3d 83, 90 (1st Cir.
2003) (“[E]vidence of predisposition may be inferred from
conversations in which a defendant displays knowledge or
experience in the criminal activity under investigation.”);
United States v. Hernandez, 31 F.3d 354, 360 (6th Cir. 1994)
(noting that a defendant “appeared to know a great deal about
cocaine trafficking”). Moreover, at the time of his arrest Ray
was in possession of several tools of the drug trade – firearms
and a digital scale bearing cocaine residue. See United States
v. Ward, 171 F.3d 188, 195 (4th Cir. 1999) (“Guns are tools of
the drug trade and are commonly recognized articles of narcotics
paraphernalia.”). Coupled with Ray’s prior convictions for drug
trafficking, this evidence was sufficient to permit a reasonable
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jury to conclude beyond a reasonable doubt that Ray was
predisposed to distribute crack cocaine. Thus, the district
court properly denied Ray’s Rule 29 motion for acquittal.
Next, we consider Ray’s claim that the district court
erred by refusing to give a jury instruction clarifying to the
jury that the prior convictions of a defendant raising an
entrapment defense are not conclusive of the defendant’s
predisposition. “[T]he decision of whether to give a jury
instruction and the content of an instruction are reviewed for
an abuse of discretion.” United States v. Ellis, 121 F.3d 908,
923 (4th Cir. 1997). “To determine whether the district court’s
failure to give the requested charge is reversible error, we
must determine whether the instruction (1) was correct; (2) was
not substantially covered by the court’s charge to the jury; and
(3) dealt with some point in the trial so important, that
failure to give the requested instruction seriously impaired the
defendant’s ability to conduct his defense.” United States v.
Squillacote, 221 F.3d 542, 564-65 (4th Cir. 2000) (citations and
internal quotation marks omitted).
We find that the district court’s refusal to give
Ray’s requested instruction did not seriously impair Ray’s
ability to conduct his defense. As noted above, the Government
presented a considerable amount of evidence, apart from Ray’s
prior convictions, from which a jury could conclude that Ray was
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predisposed to deal in crack cocaine. Given this evidence, it
is difficult to see how Ray was prejudiced by the district
court’s refusal to adopt Ray’s proposed instruction. “[E]ven
where use or denial of a jury instruction is in error, reversal
is warranted only when the error is prejudicial based on a
review of the record as a whole.” See Ellis, 121 F.3d at 923.
Finally, Ray claims that the district court mistakenly
believed that it lacked the authority to impose a sentence of
less than life imprisonment. In particular, Ray argues that his
career offender status under the Sentencing Guidelines “clearly
overstates the seriousness of [his] criminal history,” and he
points out that the district court agreed with this assessment.
Ray’s argument is meritless, however, because the career-
offender enhancement under § 4B1.1 of the Sentencing Guidelines
did not play a role in his sentence. Rather, Ray faced a
statutory mandatory minimum sentence of life imprisonment under
21 U.S.C. § 841(b)(1)(A). As we have explained, “[e]xcept upon
motion of the Government on the basis of substantial assistance,
a district court still may not depart below a statutory
minimum.” United States v. Robinson, 404 F.3d 850, 862 (4th
Cir. 2005). The district court thus did not err in imposing
Ray’s sentence.
Accordingly, we affirm the district court’s judgment.
We dispense with oral argument because the issues are adequately
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presented before the court and argument would not aid the
decisional process.
AFFIRMED
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