United States v. Allen , 403 F. App'x 800 ( 2010 )


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  •                                UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 09-4369
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.
    TAMAURIUS LEE ALLEN,
    Defendant – Appellant.
    No. 09-4773
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.
    THOMAS AVERY ALLEN, JR.,
    Defendant – Appellant.
    Appeals from the United States District Court for the Middle
    District of North Carolina, at Winston-Salem.       N. Carlton
    Tilley, Jr., Senior District Judge. (1:07-cr-00409-NCT-1; 1:07-
    cr-00409-NCT-2)
    Submitted:   October 6, 2010             Decided:   December 2, 2010
    Before MOTZ, GREGORY, and KEENAN, Circuit Judges.
    Affirmed by unpublished per curiam opinion.
    J. Clark Fischer, RANDOLPH AND FISCHER, ATTORNEYS, Winston-
    Salem, North Carolina; Brian M. Aus, Durham, North Carolina, for
    Appellants.   Anna Mills Wagoner, United States Attorney, Graham
    T. Green, Assistant United States Attorney, Greensboro, North
    Carolina, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    2
    PER CURIAM:
    Tamaurius Lee Allen and Thomas Avery Allen, Jr. were
    convicted after a jury trial of various drug-related offenses
    and     sentenced      to    150     months’         imprisonment       and      360     months’
    imprisonment,         respectively.            On     appeal,     Tamaurius         challenges
    only his convictions while Thomas challenges his convictions and
    sentence.       We affirm.
    I.
    Tamaurius was convicted of distribution of 26.1 grams
    of    cocaine    base       (Count    One);         distribution      of     38.5      grams   of
    cocaine     base      (Count       Two);       and     possession       with        intent     to
    distribute      40.1       grams     of    cocaine      base    (Count       Four);      all   in
    violation of 
    21 U.S.C. § 841
    (a)(1), (b)(1)(B) (2006).                                    Thomas
    was   convicted       of    distribution        of     63.4     grams      of   cocaine      base
    (Count Five); and distribution of 61.0 grams of cocaine (Count
    Six);    both    in    violation          of   
    21 U.S.C. § 841
    (a)(1),         (b)(1)(B)
    (2006).     Both brothers were convicted of distribution of 40.4
    grams of cocaine base and aiding and abetting (Count Three), in
    violation of 
    21 U.S.C. § 841
    (a)(1), (b)(1)(B), and 
    18 U.S.C. § 2
    (2006).     Prior to trial, the Government filed informations of
    prior    felony       drug    convictions            pursuant    to     
    21 U.S.C. § 851
    (2006), as to each defendant.
    3
    On appeal, Tamaurius contends that during the trial
    the district court incorrectly admitted evidence that, prior to
    the first drug transaction, a detective conducted surveillance
    of the area and observed drug activity.                 Tamaurius contends that
    this evidence was inadmissible under Federal Rules of Evidence
    401 and 403.       We review the district court’s evidentiary rulings
    for abuse of discretion.            United States v. Delfino, 
    510 F.3d 468
    , 470 (4th Cir. 2007), and we will not “‘vacate a conviction
    unless we find that the district court judge acted arbitrarily
    or   irrationally’     in    admitting        evidence.”     United    States   v.
    Benkahla,    
    530 F.3d 300
    ,   309   (4th    Cir.   2008)   (quoting    United
    States v. Ham, 
    998 F.2d 1247
    , 1252 (4th Cir. 1993)).
    Rule    401     provides     for    the   admission   of   “evidence
    having any tendency to make the existence of any fact that is of
    consequence to the determination of the action more probable or
    less probable than it would be without the evidence.”                      Fed. R.
    Evid. 401.     “[R]elevance typically presents a low barrier to
    admissibility.”       United States v. Leftenant, 
    341 F.3d 338
    , 346
    (4th Cir. 2003).          Thus, evidence is relevant if it is “worth
    consideration by the jury” or has a “plus value.”                 United States
    v. Queen, 
    132 F.3d 991
    , 998 (4th Cir. 1997) (internal quotation
    marks omitted).
    Rule 403 provides a “more limited bar to otherwise
    admissible evidence.”          United States v. Basham, 
    561 F.3d 302
    ,
    4
    326 (4th Cir. 2009), cert. denied, 
    130 S. Ct. 3353
     (2010).                                 The
    rule    “only       requires      suppression         of   evidence    that    results      in
    unfair    prejudice          —    prejudice      that       damages    an   opponent       for
    reasons other than its probative value, for instance, an appeal
    to emotion, and only when that unfair prejudice substantially
    outweighs the probative value of the evidence.”                             United States
    v.     Mohr,    
    318 F.3d 613
    ,     619-20     (4th    Cir.    2003)    (internal
    quotation marks omitted).
    The district court did not abuse its discretion in
    admitting the challenged evidence.                         First, the evidence, which
    was essentially background in nature and served to explain the
    detective’s further surveillance and undercover operation, was
    clearly relevant.                See Fed. R. Evid. 401 advisory committee’s
    note (“Evidence which is essentially background in nature can
    scarcely       be    said    to    involve      the    disputed   matter,      yet    it    is
    universally offered and admitted as an aid to understanding”).
    Moreover,          the     district     court     did    not    abuse       its
    discretion          in   admitting        the   evidence      under    Rule    403.        The
    testimony did not contain any allegations that the detective saw
    Tamaurius or Thomas selling drugs prior to the beginning of the
    undercover operation.               Accordingly, it cannot be said that any
    risk     of         unfair       prejudice       substantially          outweighed         the
    testimony’s probative value.
    5
    Thomas        first       challenges         the     sufficiency        of     the
    evidence on Counts Five and Six.                          We will sustain a guilty
    verdict if, viewing the evidence in the light most favorable to
    the    Government,         the     verdict         is     supported        by     substantial
    evidence.     United States v. Burgos, 
    94 F.3d 849
    , 862 (4th Cir.
    1996) (en banc).           “[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. at 862
    .            In our review, we “consider
    circumstantial        as    well       as    direct       evidence,        and     allow    the
    government the benefit of all reasonable inferences from the
    facts proven to those sought to be established,”                                United States
    v. Tresvant, 
    677 F.2d 1018
    , 1021 (4th Cir. 1982), and we assume
    that   the    fact     finder          resolved         all     contradictions        in    the
    testimony in favor of the Government.                         United States v. Brooks,
    
    524 F.3d 549
    , 563 (4th Cir. 2008).                       “[A]s a general proposition,
    circumstantial evidence may be sufficient to support a guilty
    verdict     even   though         it    does       not     exclude      every      reasonable
    hypothesis     consistent          with      innocence.”             United        States    v.
    Osborne,     
    514 F.3d 377
    ,       387   (4th        Cir.   2008)    (alteration        and
    quotation marks omitted).                Having reviewed the record in light
    of this standard, we conclude that the verdicts on Counts Five
    and Six were supported by adequate evidence.
    6
    Thomas next argues that the district court committed
    two    reversible      errors      during    his       sentencing    proceeding.          In
    reviewing      any     sentence,       “whether         inside,     just    outside,      or
    significantly outside the Guidelines range,” this court applies
    a “deferential abuse-of-discretion standard.”                             Gall v. United
    States, 
    552 U.S. 38
    , 41 (2007).                        This court first “ensure[s]
    that    the   district        court    committed        no    significant        procedural
    error.”       
    Id. at 51
    .           “If, and only if, we find the sentence
    procedurally         reasonable       can        we    ‘consider     the        substantive
    reasonableness         of    the     sentence         imposed     under    an     abuse-of-
    discretion standard.’”               United States v. Carter, 
    564 F.3d 325
    ,
    328 (4th Cir. 2009) (quoting Gall, 
    552 U.S. at 51
    ).
    Procedural       errors      may    include       “failing    to   calculate
    (or improperly calculating) the Guidelines range, treating the
    Guidelines      as     mandatory,       failing        to    consider      the    § 3553(a)
    factors, selecting a sentence based on clearly erroneous facts,
    or failing to adequately explain the chosen sentence--including
    an explanation for any deviation from the Guidelines range.”
    Gall, 
    552 U.S. at 51
    .
    Thomas        argues    that       the    district      court       committed
    procedural error by failing to recognize its ability to vary his
    sentence      downward       based    on    his       diminished    capacity       and   the
    crack-to-powder cocaine sentencing disparity.                        We conclude that
    the district court did not commit reversible procedural error in
    7
    either    respect.         First,    the    district      court   engaged       Thomas’s
    counsel at length before ultimately concluding no variance was
    warranted based on Thomas’s alleged diminished capacity.                             The
    district court began its statement of reasons by noting that it
    had    the     freedom     to     vary     from    the    Guidelines      range,    but
    recognized that it must have a reason to vary.                           The district
    court noted that mental capacity was a factor under § 3553(a)
    but that, in this case, it was “not in a position” to grant a
    downward variance because, although Thomas had a low IQ score
    from his youth, he also admitted to extensive drug use during
    his    formative    years.         The   district     court    further    noted     that
    Thomas, when he was in prison and not using drugs, was able to
    get his GED, which suggested that “when you are not using drugs,
    you can do pretty good stuff.”                    This thoughtful discussion is
    exactly      what   Gall    requires,       and     the   court   did     not    commit
    procedural       error     in    denying     a    downward     variance     based    on
    Thomas’s diminished capacity.
    Likewise, the district court did not commit procedural
    error in refusing to vary from the crack/powder ratio applicable
    to    Thomas.       In   this     case,     the    district    court     specifically
    recognized its authority to vary from the 20:1 ratio in Thomas’s
    case     but     simply         declined     to     exercise      that     authority.
    Accordingly, the district court did not commit procedural error.
    See United States v. Caldwell, 
    585 F.3d 1347
    , 1355 (10th Cir.
    8
    2009)    (upholding     district   court’s      decision   not    to   vary    from
    crack/powder ratio because “[n]othing in Kimbrough [v. United
    States,    
    552 U.S. 85
       (2007)]   mandates     that   a     district     court
    reduce    a    defendant’s    sentence     in     order    to    eliminate     the
    crack/powder sentencing disparities”).
    For the foregoing reasons, we affirm the convictions
    and sentences of Tamaurius Lee Allen and Thomas Avery Allen, Jr.
    We grant Thomas’s motion to file a pro se supplemental brief.
    We have considered the arguments asserted in the pro se brief
    and conclude that they are without merit.             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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