United States v. Hardy ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4172
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LEWIS R. HARDY,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Walter D. Kelley, Jr.,
District Judge. (2:07-cr-00120-WDK-JEB-1)
Submitted: March 27, 2009 Decided: April 17, 2009
Before GREGORY, SHEDD, and DUNCAN, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Frances H.
Pratt, Keith Loren Kimball, Assistant Federal Public Defenders,
Norfolk, Virginia, for Appellant. D. Monique Broadnax, Special
Assistant United States Attorney, Norfolk, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Lewis R. Hardy was convicted after a jury trial of
conspiracy to possess with intent to distribute heroin and
cocaine base (“crack”), in violation of 21 U.S.C. §§ 841(a)(1),
846 (2006); possession with intent to distribute heroin and
crack, in violation of § 841(a)(1); possession with intent to
distribute heroin and crack within 1000 feet of a school, in
violation of 21 U.S.C. §§ 841(a)(1), 860 (2006); and possession
of a firearm in furtherance of a drug trafficking crime, in
violation of 18 U.S.C. § 924(c) (2006). Hardy was sentenced to
a total of 185 months’ imprisonment and now appeals. His
attorney has filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967). Hardy has filed a pro se supplemental brief. *
We affirm Hardy’s conviction, but vacate the sentence, and
remand for resentencing.
In the Anders brief, counsel first questions whether
the evidence was sufficient to prove that Hardy possessed the
narcotics within 1000 feet of a school. A defendant challenging
the sufficiency of the evidence faces a heavy burden. United
States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997). The
*
In his pro se brief, Hardy questions the validity of the
indictment and the district court’s refusal of the jury’s
request to review the transcript of four witnesses’ testimony.
We have considered Hardy’s arguments in light of the applicable
legal standards and find the claims to be without merit.
2
verdict of a jury must be sustained “if, viewing the evidence in
the light most favorable to the prosecution, the verdict is
supported by substantial evidence.” United States v. Smith, 451
F.3d 209, 216 (4th Cir. 2006). “[S]ubstantial evidence [i]s
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. “Reversal for
insufficient evidence is reserved for the rare case where the
prosecution’s failure is clear.” Beidler, 110 F.3d at 1067(internal quotation marks and citation omitted).
We have reviewed the record and find that it contains
sufficient evidence to prove that Hardy possessed the drugs
within 1000 feet of a school. The proper measurement of
distance for purposes of § 860 is a straight line; that is, an
“as the crow flies” measurement. See, e.g., United States v.
Henderson, 320 F.3d 92, 103 (1st Cir. 2003). In this case, the
distance from the location where Hardy possessed the drugs and
the school was only 450 feet, well within § 860’s 1000-foot
requirement. Furthermore, since Hardy failed to rebut this
evidence, the jury could have reasonably accepted it as
sufficient to support Hardy’s guilt on this charge beyond a
reasonable doubt. Cf. United States v. Glover, 153 F.3d 749,
755 & n.5 (D.C. Cir. 1998) (finding evidence sufficient where an
3
officer offered uncontested testimony that he measured the
distance himself).
Counsel next questions whether the district court
committed plain error in calculating Hardy’s criminal history
category under the guidelines. Although this issue is presented
in an Anders brief, counsel concludes that it is, in fact,
meritorious. Counsel acknowledges, however, that he failed to
object to the guidelines calculation before the district court.
Because this issue was not raised below, we review for plain
error. See Fed. R. Crim. P. 52(b); United States v. Olano, 507
U.S. 725, 731-32 (1993). To prevail on a claim of unpreserved
error, Hardy must show that error occurred, that it was plain,
and that it affected his substantial rights. Olano, 507 U.S. at
732. Furthermore, this court will not exercise its discretion
to correct such error unless it “seriously affect[s] the
fairness, integrity or public reputation of judicial
proceedings.” Id. at 732 (internal quotation marks and
citations omitted).
In calculating a defendant’s criminal history category
under the guidelines, two points are added for each conviction
for offenses that occurred prior to the defendant turning
eighteen that resulted in a period of confinement for more than
sixty days, from which the defendant was released within five
years of the present offense conduct. See U.S. Sentencing
4
Guidelines Manual (“USSG”) § 4A1.2(d)(2)(A) (2007).
Furthermore, the guidelines provide that prior sentences are to
be counted separately if there are any intervening arrests
between the offenses. See USSG § 4A1.2(a)(2). “If there is no
intervening arrest, prior sentences are counted separately
unless (A) the sentences resulted from offenses contained in the
same charging instrument; or (B) the sentences were imposed on
the same day.” Id. If there was no intervening arrest and
either of those conditions is met, the prior sentences are to be
counted as a single sentence in calculating a defendant’s
criminal history category.
In this case, Hardy’s criminal history contained three
separate juvenile offenses that met the criteria under the
guidelines to receive two criminal history points each.
However, there were no intervening arrests between these
offenses, and Hardy was sentenced for all three on the same day.
Therefore, these sentences should have been counted as a single
prior sentence. The district court instead counted them
separately, resulting in a total of four criminal history points
being erroneously attributed to Hardy. This increased his
criminal history category from III to IV and increased his
applicable guidelines range from eighty-seven to 108 months’
imprisonment to 100 to 125 months’ imprisonment. We conclude
that this constituted plain error that affected Hardy’s
5
substantial rights and that should be noticed on appeal. See
United States v. Ford, 88 F.3d 1350, 1355-56 (4th Cir. 1996).
We have examined the entire record in this case in
accordance with the requirements of Anders and have found no
other meritorious issues for appeal. We therefore affirm
Hardy’s conviction, vacate his sentence, and remand for
resentencing. See Gall v. United States, 128 S. Ct. 586, 597
(2007). We further deny Hardy’s motion for grand jury
transcripts. This court requires that counsel inform Hardy, in
writing, of the right to petition the Supreme Court of the
United States for further review. If Hardy requests that a
petition be filed, but counsel believes that such a petition
would be frivolous, then counsel may move in this court for
leave to withdraw from representation. Counsel’s motion must
state that a copy thereof was served on Hardy. 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 IN PART,
VACATED IN PART, AND REMANDED
6