United States v. Puzey , 73 F. App'x 549 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 01-4875
MICHAEL PAUL PUZEY, a/k/a Big
Pete,
Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of West Virginia, at Martinsburg.
W. Craig Broadwater, District Judge.
(CR-00-57, CR-00-64)
Submitted: June 30, 2003
Decided: August 11, 2003
Before WILLIAMS, MOTZ, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Jeffrey M. Brandt, ROBINSON & BRANDT, P.S.C., Cincinnati,
Ohio, for Appellant. Thomas E. Johnston, United States Attorney,
Thomas O. Mucklow, Assistant United States Attorney, Martinsburg,
West Virginia, for Appellee.
2 UNITED STATES v. PUZEY
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Michael Paul Puzey was convicted by a jury of conspiracy to dis-
tribute crack cocaine, 21 U.S.C. § 846 (2000); distribution of crack
cocaine (four counts), 21 U.S.C. § 841(a)(1) (2000); and use of a fire-
arm during and in relation to a drug trafficking offense, 18 U.S.C.
§ 924(c) (2000). Puzey was sentenced to life imprisonment on the
conspiracy count; 240 months on three of the distribution counts; 480
months on the fourth distribution count; and a consecutive five-year
sentence on the firearms count. He appeals, raising numerous chal-
lenges to his conviction and sentence. Finding no merit to Puzey’s
claims, we affirm his conviction and sentence.
Puzey first argues that the district court erred in instructing the jury
with regard to his conspiracy liability under the Pinkerton doctrine.
See Pinkerton v. United States, 328 U.S. 640 (1946). The Pinkerton
doctrine imposes vicarious liability on a conspirator for the substan-
tive offenses committed by other members of the conspiracy if those
crimes are reasonably foreseeable to that conspirator. Puzey contends
that as a result of its omission of the "reasonably foreseeable" lan-
guage he requested, the district court’s instruction permitted the jury
to find him culpable for drug quantities that were not foreseeable to
him, and that this error invalidates his conspiracy conviction.
The jury concluded that Puzey was guilty of conspiracy to distrib-
ute more than 50 grams of cocaine base. Evidence adduced at trial
establishes that Puzey himself distributed or possessed with intent to
distribute more than 50 grams of cocaine base during the course of
the conspiracy, to say nothing of the activities of his coconspirators.
See, e.g., J.A. at 187 (testimony that witness bought between $50 and
$150 of crack cocaine from Puzey on multiple occasions); J.A. at
191-92 (testimony that Puzey possessed approximately an ounce (or
more than 28 grams) of crack cocaine on numerous occasions, which
UNITED STATES v. PUZEY 3
he "chopp[ed] up" and distributed); J.A. at 295-96 (testimony indicat-
ing that Puzey sold $500 to $1000 worth of crack cocaine every
weekend night over the course of approximately six months)).1 In
light of the evidence adduced at trial, of which even a conservative
view would yield the conclusion that Puzey’s participation in the con-
spiracy involved more than 50 grams of crack cocaine, there is no
likelihood that any reasonable jury would have failed to find Puzey
culpable for more than 50 grams if instructed as Puzey proposed.
Accordingly, we conclude beyond a reasonable doubt that Puzey was
not prejudiced by any error in the district court’s jury instruction.2 See
Neder v. United States, 527 U.S. 1, 15 (1999) (noting that, under
harmless error review, errors should be disregarded where "it appears
beyond a reasonable doubt that the error complained of did not con-
tribute to the verdict obtained" (internal quotation marks omitted)).
Next, Puzey maintains that the district court failed to require the
jury to determine the exact drug amount attributable to him. Accord-
ing to Puzey, although the jury found that he was involved with more
than 50 grams of crack cocaine, the district court usurped the role of
the jury by determining the exact amount of crack at sentencing.
However, the court may make findings that may elevate a defendant’s
guideline range so long as the sentence imposed does not go beyond
the statutory maximum. See United States v. Kinter, 235 F.3d 192,
199-200 (4th Cir. 2000); see also United States v. White, 238 F.3d
537, 541 n.4 (4th Cir. 2001) (holding that district court may engage
in factfinding above and beyond the jury’s findings in order to deter-
mine the sentence). Here, the statutory maximum sentence where the
offense involved more than 50 grams of crack cocaine was life
imprisonment.
Puzey claims that the district court erred in denying his motion for
judgment of acquittal on the conspiracy charge because the evidence
was insufficient to support his conviction. This court reviews the
denial of a motion for a judgment of acquittal de novo. United States
1
Testimony at trial indicated that Puzey would sell an "eight ball" —
one-eighth of an ounce, or approximately 3.5 grams of crack cocaine —
for $150. (J.A. at 170.)
2
Having assumed arguendo that the district court’s instruction consti-
tuted error, we need not, and do not, decide the issue.
4 UNITED STATES v. PUZEY
v. Gallimore, 247 F.3d 134, 136 (4th Cir. 2001). Where, as here, the
motion is based on insufficient evidence, the relevant question is not
whether the court is convinced of guilt beyond a reasonable doubt, but
rather whether, taking the view most favorable to the government,
there was substantial evidence to support the verdict. Glasser v.
United States, 315 U.S. 60, 80 (1942); United States v. Stewart, 256
F.3d at 231, 250 (4th Cir. 2001) (citing United States v. Burgos, 94
F.3d 849, 862-63 (4th Cir. 1996) (en banc)).
In order to prove a drug conspiracy, the Government must prove
the following: "(1) an agreement with another person to violate the
[drug] law, (2) knowledge of the essential objectives of the conspir-
acy, (3) knowing and voluntary involvement, and (4) interdependence
among the alleged conspirators." Stewart, 256 F.3d at 250 (internal
quotations and citation omitted). "[O]nly a slight connection need be
made linking a defendant to the conspiracy to support a conspiracy
conviction, although this connection also must be proved beyond a
reasonable doubt." Burgos, 94 F.3d at 862. A defendant’s "slight con-
nection" to the conspiracy may be proven by direct or circumstantial
evidence, but "the Government nevertheless must establish proof of
each element of a conspiracy beyond a reasonable doubt." Id. at 858.
Puzey claims that the evidence failed to show that he had any
knowledge of the conspiracy or intent to join it; rather, he claims, the
evidence showed only that "he was a user that was around the drug
activity on some weekends."
Puzey was one of twenty-six conspirators indicted in a sixty-five
count indictment arising out of a large crack cocaine conspiracy last-
ing over ten years in Jefferson County, West Virginia. The conspiracy
comprised a network of crack houses, dealers, "runners," and buyers
in the Fox Glen subdivision. Puzey arrived on the scene in 1997, sell-
ing crack from various crack houses within Fox Glen. Joey Breeden,
one of Puzey’s co defendants, testified that Puzey "popped up [in] my
doorway one night" and "set up business." Breeden allowed Puzey to
use his trailer in exchange for crack cocaine; Breeden also acted as
one of many runners for Puzey. Numerous witnesses testified as to
drug purchases made from Puzey. For example, Robin Gray, a confi-
dential informant, testified that she purchased crack from Puzey
approximately "50 times," in increments ranging from $50 to $150.
UNITED STATES v. PUZEY 5
Another witness, Angela Jones, acted as a runner for Puzey and testi-
fied that Puzey sold $500 to $1000 worth of crack cocaine each night
on weekends. Taking the view most favorable to the government, we
find that there was substantial evidence to support the verdict of
guilty. Consequently, the district court did not err in denying Puzey’s
motion for judgment of acquittal on the conspiracy charge.
Puzey next challenges the enhancement he received for his role in
the offense. The district court’s determination on this issue is
reviewed for clear error. United States v. Perkins, 108 F.3d 512, 518
(4th Cir. 1997). The sentencing guidelines provide for a four-point
enhancement if "the defendant was an organizer or leader of a crimi-
nal activity that involved five or more participants or was otherwise
extensive." U.S. Sentencing Guidelines Manual § 3B1.1(a) (2000).
The application notes to § 3B1.1 indicate that relevant factors include
the nature of the defendant’s participation in the commission of the
offense, the degree of the defendant’s participation in planning or
organizing the offense, and the degree of control and authority the
defendant exercised over others. USSG § 3B1.1, comment. (n.4).
The probation officer found, based on evidence presented at trial,
that Puzey was an organizer/leader of a drug conspiracy involving
twenty-five other persons (Puzey’s named co-defendants) and that he
intimidated and threatened the residents of Fox Glen, dealt crack
cocaine from their homes and had the homeowners act as "runners,"
with Puzey receiving the largest share of the proceeds. Puzey cannot
show that the district court clearly erred in adopting the presentence
report’s recommendation that he receive the § 3B1.1 enhancement.
Next, Puzey argues that the district court clearly erred in applying
the two-level enhancement for obstruction of justice pursuant to
USSG § 3C1.1. A district court’s application of the guidelines’
enhancement for obstruction of justice will be overturned only if
clearly erroneous. United States v. Puckett, 61 F.3d 1092, 1095 (4th
Cir. 1995). The guidelines authorize the district court to increase the
defendant’s offense level by two points if he or she willfully
obstructed or impeded, or attempted to obstruct or impede, the admin-
istration of justice during the course of the investigation, prosecution,
or sentencing. USSG § 3C1.1 (2002). The Government must prove
the facts constituting obstruction by a preponderance of the evidence.
6 UNITED STATES v. PUZEY
United States v. Nelson, 6 F.3d 1049, 1054 (4th Cir. 1993), overruled
on other grounds, Bailey v. United States, 516 U.S. 137 (1995). A
defendant’s perjury can establish a basis for a finding of obstruction
of justice. USSG § 3C1.1, comment. (n.4(b)). The court must find, by
a preponderance of the evidence, that the defendant gave false testi-
mony, concerning a material matter, with the willful intent to deceive,
rather than as a result of confusion, mistake, or faulty memory. United
States v. Dunnigan, 507 U.S. 87, 92-98 (1993); United States v.
Jones, 308 F.3d 425, 428 n.2 (4th Cir. 2002), cert. denied, 71
U.S.L.W. 3566 (No. 02-8718) (Mar. 3, 2003). The district court may
either make findings on each element of perjury, or make a finding
that encompasses all the factual predicates for a finding of perjury.
Jones, 308 F.3d at 428 n.2. Here, the district court found that the Gov-
ernment met its burden in proving Puzey willfully testified falsely on
a material fact when he took the stand and denied his involvement in
the offense. Puzey cannot show that this finding was clearly errone-
ous.
Puzey also maintains that the sentencing guidelines are unconstitu-
tional in light of the Supreme Court’s holding in Apprendi v. New Jer-
sey, 530 U.S. 466 (2000). At a minimum, he argues, his sentencing
enhancements for being a leader/organizer and for obstruction of jus-
tice should have been charged in the indictment and proved beyond
a reasonable doubt. Because he did not raise these arguments below,
this court reviews for plain error. See Fed. R. Crim. P. 52(b); United
States v. Hastings, 134 F.3d 235, 239 (4th Cir. 1998).
This court held in United States v. Kinter, 235 F.3d 192, 201 (4th
Cir. 2000), that Apprendi does not apply to judicial factfinding under
the guidelines as long as the sentence does not exceed the statutory
maximum term set out in the statute. See also Harris v. United States,
536 U.S. 545 (2002) (holding that Apprendi is not implicated when
the sentencing court makes factual findings that increase the guideline
range but the sentence does not exceed the statutory maximum). Here,
Puzey’s life sentence did not exceed the statutory maximum when
more than 50 grams of crack cocaine are involved in the offense.
Consequently, this claim fails.
Finally, Puzey appeals the denial of his motion to produce wit-
nesses at his sentencing hearing. The district court denied Puzey’s
UNITED STATES v. PUZEY 7
motion for production of witnesses, finding that all of the requested
witnesses had already testified and been cross-examined at trial and
that their testimony would offer nothing further that was relevant to
Puzey’s sentencing arguments. We find that the district court did not
abuse its discretion in denying Puzey’s motion to produce these wit-
nesses at sentencing. See United States v. Zuleta-Alvarez, 922 F.2d
33, 36 (1st Cir. 1990) (affirming denial of request for presentation of
testimony at sentencing based in part on defendant’s failure to estab-
lish the need for such testimony).
Based on the foregoing, we affirm Puzey’s conviction and sen-
tence. We grant Puzey’s unopposed motion to submit on the briefs
and dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid in the decisional process.
AFFIRMED