United States v. Hairston , 38 F. App'x 884 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 01-4692
ARTHUR LEE HAIRSTON, SR., a/k/a
Reverend Arthur, a/k/a Big Arthur,
Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of West Virginia, at Martinsburg.
W. Craig Broadwater, District Judge.
(CR-00-24)
Submitted: May 6, 2002
Decided: June 7, 2002
Before MICHAEL, TRAXLER, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Joseph B. Gilbert, MCNEIL & GILBERT, Jacksonville, North Caro-
lina, for Appellant. Thomas E. Johnston, United States Attorney,
Thomas O. Mucklow, Assistant United States Attorney, Martinsburg,
West Virginia, for Appellee.
2 UNITED STATES v. HAIRSTON
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Arthur Lee Hairston, Sr., appeals from his convictions and sen-
tences entered after a jury found him guilty of conspiracy to distribute
crack cocaine, three counts of distribution of crack cocaine, and two
counts of aiding and abetting the distribution of crack cocaine. On
appeal, Hairston raises numerous claims challenging both his convic-
tions and sentences. After careful consideration, we affirm.
I.
Hairston first challenges the denial of his motion for a new trial.
The district court’s ruling on a motion for a new trial is reviewed for
abuse of discretion. See, e.g., United States v. Stokes, 261 F.3d 496,
502 (4th Cir. 2001), cert. denied, 122 S. Ct. 1546 (2002). The motion
may be granted "if the interests of justice so require." Fed. R. Crim.
P. 33. In the district court and on appeal, Hairston raised seven sepa-
rate grounds for granting him a new trial. However, even assuming
that the trial court erred as Hairston alleges, he has failed to show any
specific prejudice emanating from any of the court’s rulings that he
challenges. Accordingly, the district court did not abuse its discretion
in denying Hairston’s motion.
II.
Hairston next argues that the district court erroneously denied his
motion to recuse. Hairston’s motion was based on recorded conversa-
tions of prison phone calls between Hairston and his wife, following
the jury’s verdict, where Hairston allegedly threatened Judge Broad-
water and the Assistant United States Attorney prosecuting the case.
The Government made the trial court aware of the substance of Hairs-
ton’s threats. Judge Broadwater denied the motion, finding that Hairs-
ton’s statements were just "puffing" and not to be taken seriously.
UNITED STATES v. HAIRSTON 3
Under 28 U.S.C.A. § 455(a) (West 1993), "[a]ny justice, judge, or
magistrate of the United States shall disqualify himself in any pro-
ceeding in which his impartiality might reasonably be questioned." In
particular, a judge must disqualify himself when he has "a personal
bias or prejudice concerning a party." 28 U.S.C.A. § 455(b)(1). While
a defendant’s alleged death threat against a judge may, in some cases,
sufficiently raise the specter of partiality to warrant the judge’s
recusal, recusal is not automatically required simply because the trial
judge becomes aware of the threats. See United States v. Yu-Leung,
51 F.3d 1116, 1119-20 (2d Cir. 1995). In this case, recusal was not
warranted. The threats in this case were not taken seriously by the
judge or the AUSA, and there is no evidence that Judge Broadwater
strayed from his normal procedures. Because there were no grounds
to reasonably question the trial judge’s impartiality, the motion for
recusal was properly denied.
III.
Next, Hairston asserts that the district court erred in calculating the
drug amount attributable to him. Specifically, Hairston complains that
the controlled buys did not provide accurate calculations from which
to estimate drug amounts. For example, $160 bought 1.87 grams one
day and .91 grams the next, even though both these purchases were
purported to be for an "8-ball" (1/8 ounce). To solve this discrepancy,
the presentence report totaled the grams bought and money paid to
determine the average price per gram. With these calculations, the
district court and the presentence report converted testimony regard-
ing money spent into gram weights. On appeal, Hairston alleges that,
because the estimates were not exact, in each transaction without an
actual weight only .1 gram should be added.
This court reviews the district court’s calculation of the quantity of
drugs attributable to a defendant for sentencing purposes for clear
error. See United States v. Randall, 171 F.3d 195, 210 (4th Cir. 1999).
The sentencing guidelines do not demand certainty and precision;
they demand that a court do the best that it can with the evidence in
the record, erring on the side of caution. See United States v. Cook,
76 F.3d 596, 604 (4th Cir. 1996). Here, the court found that Hairston
was responsible for at least 500 grams but less than 1.5 kilograms of
crack cocaine. After a review of the record, we find that this determi-
4 UNITED STATES v. HAIRSTON
nation is not clearly erroneous, and Hairston’s assertion that a set
amount of .1 gram should be used for each transaction is without sup-
port.
IV.
U.S. Sentencing Guidelines Manual § 5G1.2(d) (2000) instructs
that, in a case involving multiple counts of conviction, if the total
punishment mandated by the guidelines exceeds the highest statutory
maximum, the district court must impose consecutive terms of impris-
onment to the extent necessary to achieve the total punishment. Here,
the district court complied with § 5G1.2(d). First, it calculated a
guideline sentence of 290 months, which exceeded the statutory maxi-
mum of 240 months. See 21 U.S.C.A. § 841(b)(1)(C) (West Supp.
2001). Second, it imposed 240 months on each count and structured
the sentences to run consecutively to the degree necessary to reach the
290 month guideline sentence.
Nonetheless, Hairston alleges that his sentence violated Apprendi
v. New Jersey, 530 U.S. 466 (2000), because it exceeded the statutory
maximum of 240 months. Hairston acknowledges that this court, in
United States v. White, 238 F.3d 537 (4th Cir.), cert. denied, 532 U.S.
1074 (2001), approved the "stacking" provision of § 5G1.2(d). How-
ever, Hairston asserts that the result in this case should be different
because, in White, there was no objection below and the case was
reviewed for plain error, while in this case Hairston properly objected.
Hairston’s argument is not logically sound. In White, the Court
found there was no plain error, because although White received sen-
tences for multiple counts that exceeded the statutory maximum on
each count, the district court would have been obligated under
§ 5G1.2(d) to impose consecutive sentences as necessary to achieve
the total punishment mandated by the guidelines. See id. at 543. Here,
there was no error at all, because the district court followed
§ 5G1.2(d), a process approved in White.
V.
Based on the foregoing, we affirm Hairston’s convictions and sen-
tences. We grant the Government’s motion to file a supplemental
UNITED STATES v. HAIRSTON 5
appendix and 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