United States v. Nelson , 237 F. App'x 819 ( 2007 )

Vacated by Supreme Court, filed January 22, 2008
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4456
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
LAWRENCE W. NELSON, a/k/a Zikee,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg. Irene M. Keeley, Chief
District Judge. (1:03-cr-00049-IMK)
Submitted: June 29, 2007 Decided: July 30, 2007
Before NIEMEYER and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Christopher A. Davis, DAVIS LAW OFFICES, Clarksburg, West Virginia,
for Appellant. Sharon L. Potter, United States Attorney, Zelda E.
Wesley, Assistant United States Attorney, Clarksburg, West
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Lawrence W. Nelson appeals his conviction by a jury of
conspiracy to distribute and possess with intent to distribute more
than fifty grams of crack cocaine, in violation of 21 U.S.C. § 846(2000). The district court sentenced him to a 360-month term of
imprisonment, the bottom of the advisory sentencing guideline
range. Nelson appeals his conviction and sentence, asserting that
the evidence was insufficient to convict, that the district court
abused its discretion in making certain evidentiary rulings and in
denying his motion for a continuance and to reopen his case, and
that the court essentially sentenced him under a mandatory
guideline scheme. We affirm.
Nelson first asserts that the evidence was insufficient
to convict him of conspiracy to possess with intent to distribute
and to distribute crack cocaine because the Government failed to
prove an agreement between Nelson and another person. This court
reviews de novo the district court’s decision to deny a motion
filed pursuant to Fed. R. Crim. P. 29. United States v. Smith, 451
F.3d 209, 216 (4th Cir.), cert. denied, 127 S. Ct. 197 (2006).
Where, as here, the motion was based on a claim of insufficient
evidence, “[t]he verdict of a jury must be sustained if there is
substantial evidence, taking the view most favorable to the
Government, to support it.” Glasser v. United States, 315 U.S. 60,
80 (1942); Smith, 451 F.3d at 216. This court “can reverse a
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conviction on insufficiency grounds only when the prosecution’s
failure is clear.” United States v. Moye, 454 F.3d 390, 394 (4th
Cir.) (internal quotation marks and citation omitted), cert.
denied, 127 S. Ct. 452 (2006).
We have carefully reviewed the trial testimony and are
convinced that the Government established a loosely-knit
association of members, including Nelson, whose purpose was to
distribute crack cocaine in West Virginia. See United States v.
Strickland, 245 F.3d 368, 384-85 (4th Cir. 2001) (discussing
elements of offense); see also United States v. Cardwell, 433 F.3d
378, 390 (4th Cir. 2005) (“The existence of a tacit or mutual
understanding between conspirators is sufficient evidence of a
conspiratorial agreement.”) (internal quotation marks and citation
omitted), cert. denied, 126 S. Ct. 1669 (2006). Although Nelson
asserts that he merely had buyer-seller relationships with those
individuals, we conclude that the jury could infer that a
conspiracy existed from the amount of drugs exchanged. See United
States v. Mills, 995 F.2d 480, 485 n.1 (4th Cir. 1993) (“[E]vidence
of a buy-sell transaction, when coupled with a substantial quantity
of drugs, would support a reasonable inference that the parties
were coconspirators.”). Thus, we find that the evidence was
sufficient to convict Nelson of conspiracy to distribute crack
cocaine.
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Next, Nelson challenges certain evidentiary rulings on
the ground that the rulings prevented him from developing his
defense. Nelson points to, inter alia, the district court’s
decision to allow Anthony Powell and Jamal Eddings to testify
despite their alleged late disclosure, to allow William Lohr to
testify where the substance of his testimony was not disclosed
until several days into the trial, to allow Sergeant Adams to
testify as a summary witness, and to limit counsel’s
cross-examination of Edward Hollins. We find no abuse of
discretion in the district court’s evidentiary rulings. See United
States v. Cooper, 482 F.3d 658, 662-63 (4th Cir. 2007) (stating
standard of review).
To the extent that Nelson also contends the cumulative
effect of the district court’s evidentiary rulings amounted to
partiality that denied him a fair trial, we review this claim for
plain error because Nelson failed to object on this ground in the
district court. See United States v. Smith, 452 F.3d 323, 330 (4th
Cir.) (providing standard), cert. denied, 127 S. Ct. 694 (2006).
Our review of the trial testimony convinces us that there was no
error—plain or otherwise—on the district court’s part. Moreover,
the court instructed the jury that it should not draw any
inferences from the court’s statements, rulings, questions,
remarks, or comments and should judge independently the questions
of fact in Nelson’s case. See United States v. Smith, 441 F.3d
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254, 269 (4th Cir.) (stating that any “cumulative effect of the
interventions by the court . . . was ameliorated by the
instructions to the jury[,]” and “[j]urors are presumed to adhere
to cautionary instructions issued by the district court”), cert.
denied, 127 S. Ct. 226 (2006). We therefore find that Nelson is
not entitled to relief on this claim.
Nelson asserts that the district court erred by denying
his requests for a continuance for counsel to prepare for witnesses
not previously disclosed by the Government and by denying his
motion to reopen his case in chief to present additional testimony.
Our review of the district court’s decisions leads us to conclude
that the court did not abuse its discretion in denying either
motion. See United States v. Williams, 445 F.3d 724, 738 (4th
Cir.) (stating standard of review for denial of motion for
continuance), cert. denied, 127 S. Ct. 314 (2000); United States v.
Nunez, 432 F.3d 573, 579 (4th Cir. 2005) (providing standard for
motion to reopen).
Finally, it is well established in this circuit that a
sentence imposed within a properly calculated guideline range is
presumed to be reasonable. See, e.g., United States v. Montes-
Pineda, 445 F.3d 375, 379 (4th Cir.), petition for cert. filed, ___
U.S.L.W. ___ (U.S. July 21, 2006) (No. 06-5439); United States v.
Johnson, 445 F.3d 339, 341-42 (4th Cir. 2006); United States v.
Moreland, 437 F.3d 424, 433 (4th Cir.), cert. denied, 126 S. Ct.
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2054 (2006); United States v. Green, 436 F.3d 449, 457 (4th Cir.),
cert. denied, 126 S. Ct. 2309 (2006). Nelson claims that the
district court’s reliance on this presumption of reasonableness
rendered the guidelines sentence it imposed mandatory in
contravention of United States v. Booker, 543 U.S. 220 (2005). We
find that Nelson’s argument is foreclosed by the Supreme Court’s
decision in Rita v. United States, ___ U.S. ___, ___, 2007 WL
1772146, at *3, *6 (U.S. June 21, 2007) (No. 06-5754).
Accordingly, we affirm the district court’s judgment. 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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