United States v. Roger Crumblin, Jr. ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4673
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ROGER RAY CRUMBLIN, JR., a/k/a Rajah Maurice Aiken, a/k/a
Rodger Ray Crumblin, a/k/a Roger Ray Crumblin,
Defendant – Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, Chief District
Judge. (2:09-cr-00039-DCN-1)
Submitted: July 14, 2011 Decided: July 28, 2011
Before KING, GREGORY, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Matthew M. Robinson, ROBINSON & BRANDT, P.S.C., Covington,
Kentucky, for Appellant. William N. Nettles, United States
Attorney, Sean Kittrell, Assistant United States Attorney,
Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Roger Ray Crumblin, Jr., was convicted, following a
jury trial, of being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g)(1) (2006) (Count One),
possession with intent to distribute cocaine and cocaine base,
in violation of 21 U.S.C. § 841(a)(1) (2006) (Count Two), and
possession of a firearm in furtherance of a drug trafficking
crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i) (2006) (Count
Three). Crumblin was sentenced as a career offender, pursuant
to U.S. Sentencing Guidelines Manual (“USSG”) § 4B1.1(c)(3)
(2009), and he received a sentence of 360 months’ imprisonment.
On appeal, Crumblin raises four issues: (1) that the
district court constructively amended the indictment because it
charged the jury in the disjunctive when the indictment was
drafted in the conjunctive; (2) that there was insufficient
evidence to establish that Crumblin possessed firearms or
ammunition; (3) that the district court erred in sentencing him
as a career offender and an armed career criminal; and (4) that
the district court improperly assessed a six-level enhancement,
pursuant to USSG § 3A1.2(c), for creating a substantial risk of
serious bodily harm to a law enforcement officer. For the
reasons that follow, we affirm the judgment of the district
court.
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I.
Crumblin contends that the district court
constructively amended the indictment when it instructed the
jury on Counts One and Two in the disjunctive where the
indictment was drafted in the conjunctive. He asserts that the
district court impermissibly broadened the possible bases for
conviction.
A criminal defendant may only be tried on charges
alleged in an indictment, and “only the grand jury may broaden
or alter the charges in the indictment.” United States v.
Randall, 171 F.3d 195, 203 (4th Cir. 1999). “A constructive
amendment to an indictment occurs when . . . the court (usually
through its instructions to the jury) . . . broadens the
possible bases for conviction beyond those presented by the
grand jury,” which results in a “fatal variance[] because ‘the
indictment is altered to change the elements of the offense
charged, such that the defendant is actually convicted of a
crime other than that charged in the indictment.’” United
States v. Foster, 507 F.3d 233, 242 (4th Cir. 2007) (quoting
Randall, 171 F.3d at 203. Constructive amendments are “error
per se and, given the Fifth Amendment right to be indicted by a
grand jury, ‘must be corrected on appeal even when not preserved
by objection.’” Id. (quoting United States v. Floresca, 38 F.3d
706, 714 (4th Cir. 1994) (en banc)).
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However, not every variance between an indictment and
jury instructions rises to the level of a constructive
amendment. Indeed, “[i]t is well-established that when the
Government charges in the conjunctive, [but] the statute [at
issue] is worded in the disjunctive, the district court can
instruct the jury in the disjunctive” without constructively
amending the indictment. United States v. Perry, 560 F.3d 246,
256 (4th Cir. 2009).
Here, although Count One of the indictment charged
Crumblin with possession of “firearms and ammunition, that is, a
HiPoint 9mm pistol, a Taurus .357 revolver, .38 caliber
ammunition, .357 caliber ammunition, and 9mm ammunition,” and
Count Two charged with possession with intent to distribute
cocaine and cocaine base, the relevant statutes are phrased
disjunctively, and the district court’s jury instructions
tracked the language of the statute itself. The court’s
instructions were thus correct as instructing otherwise would
“improperly add elements to the crime that are not contained in
the statute itself.” United States v. Montgomery, 262 F.3d 233,
242 (4th Cir. 2001).
II.
Next, Crumblin argues that the evidence adduced at
trial was insufficient to support his conviction on Count One.
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He notes that fingerprints were not recovered from either of the
weapons. Crumblin asserts that, although Deputy Brennan
testified that he witnessed Crumblin discard something dark and
heavy, the poor lighting conditions undermined the reliability
of Brennan’s testimony.
We review de novo challenges to the sufficiency of the
evidence supporting a jury verdict. United States v. Kelly,
510 F.3d 433, 440 (4th Cir. 2007). A jury verdict should be
affirmed where, “viewing the evidence in the light most
favorable to the prosecution, [it] is supported by substantial
evidence.” United States v. King, 628 F.3d 693, 700
(4th Cir. 2011) (internal quotation marks omitted). Substantial
evidence is such “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.” United
States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc).
To convict Crumblin of a § 922(g)(1) violation, the
Government was required to prove: (1) that the “defendant was a
convicted felon at the time of the offense,” (2) that he
“voluntarily and intentionally possessed a firearm,” and (3)
that “the firearm traveled in interstate commerce at some
point.” United States v. Gallimore, 247 F.3d 134, 136 (4th Cir.
2001). Crumblin disputes only the second element.
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Although Crumblin presented the testimony of a
photographer concerning general nighttime visibility conditions
in the area, where Crumblin was apprehended, the jury was free
to weigh the significance of this testimony in light of the
other evidence presented. Viewed in the light most favorable to
the Government, the record contains ample evidence permitting a
reasonable jury to conclude that Crumblin possessed the firearms
listed in the indictment. See King, 628 F.3d at 700(“Throughout our review, we assume that the jury resolved any
conflicting evidence in the prosecution’s favor.” (internal
quotation marks omitted)).
III.
Next, Crumblin argues that the district court erred in
sentencing him as both a career offender and an armed career
criminal. In determining whether a defendant qualifies as
either an armed career criminal or a career offender, we review
legal conclusions de novo and factual findings for clear error.
See United States v. Hampton, 628 F.3d 654, 659 (4th Cir. 2010).
A defendant is a career offender under the Guidelines
if:
(1) the defendant was at least eighteen years old at
the time the defendant committed the instant offense
of conviction; (2) the instant offense of conviction
is a felony that is either a crime of violence or a
controlled substance offense; and (3) the defendant
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has at least two prior felony convictions of either a
crime of violence or a controlled substance offense.
USSG § 4B1.1(a). A “prior felony conviction” means “a prior
adult federal or state conviction for an offense punishable by
death or imprisonment for a term exceeding one year, regardless
of whether such offense is specifically designated as a felony
and regardless of the actual sentence imposed.” USSG § 4B1.2,
cmt. n.1. A conviction sustained before age eighteen may
qualify as a predicate conviction “if it is classified as an
adult conviction under the laws of the jurisdiction in which the
defendant was convicted.” Id.
Crumblin asserts that his 1994 conviction may not
serve as a predicate for his career offender status * because he
was seventeen years old at the time of his arrest. Crumblin
relies on the Supreme Court’s decision in Roper v. Simmons,
543 U.S. 551 (2005), in which the Court held that the Eighth
Amendment prohibits imposition of the death penalty on offenders
under the age of eighteen. He argues that Roper, considered in
conjunction with South Carolina’s Youthful Offender Act (“YOA”),
*
Crumblin was arrested for two offenses on
January 14, 1994. The probation officer counted each as a
separate predicate offense for purposes of the armed career
criminal designation. Crumblin’s status as a career offender
does not require that these offenses be considered separately,
because even without counting them separately, Crumblin has the
requisite predicates. Consequently, we need not address this
contention.
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S.C. Code Ann. § 24-19-50 (2005), prohibits consideration of his
1994 conviction as a predicate offense.
Under South Carolina law, a youthful offender can
include offenders up to twenty-four years old. S.C. Code Ann.
§ 24-19-10(d) (2005 & Supp. 2010). A “child” is defined as an
individual under the age of seventeen, and the family court has
exclusive jurisdiction over juvenile offenses. S.C. Code Ann.
§ 63-19-20 (2010); see State v. Pittman, 647 S.E.2d 144, 160
(S.C. 2007) (construing provisions then codified at S.C. Code
Ann. § 20-7-400 (2003)). Therefore, Crumblin’s 1994 conviction
was not a juvenile conviction, despite his YOA sentence, and he
was sentenced to the maximum six-year term of imprisonment.
Accordingly, we conclude that the conviction may be counted
toward the career offender designation. See United States v.
Williams, 508 F.3d 724, 727-28 (4th Cir. 2007) (finding
conviction qualified as armed career criminal predicate where
sentence was imposed under the YOA); see also (J.A. 362
(sentence imposed)); S.C. Code Ann. § 24-19-50(3) (maximum
penalty).
Although Crumblin’s career offender status controls
his sentencing, he argues that his armed career criminal status
is relevant “because it increased the statutory minimum sentence
to 15 years imprisonment under § 924(e)(1).” However, the
statutory minimum was not an operative consideration in this
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case as his sentence was based on the Guidelines range.
Crumblin’s armed career criminal status is thus not relevant to
the sentence imposed.
IV.
Finally, Crumblin asserts that the district court
erred in applying a six-level enhancement to his offense level
for creating a substantial risk of serious bodily harm to a law
enforcement officer. In light of Crumblin’s status as a career
offender, this enhancement did not affect his sentence and we
need not address it. See Williams v. United States, 503 U.S.
193, 203 (1992) (concluding that a procedural error during
sentencing is harmless if “the error did not affect the district
court’s selection of the sentence imposed”).
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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