United States v. Wilhelm ( 1998 )


Menu:
  • UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    v.                                                                  No. 98-4161
    LAUREN ERIC WILHELM,
    Defendant-Appellant.
    Appeal from the United States District Court
    for the Western District of North Carolina, at Statesville.
    Richard L. Voorhees, Chief District Judge.
    (CR-97-2)
    Submitted: November 30, 1998
    Decided: December 17, 1998
    Before HAMILTON and MOTZ, Circuit Judges, and
    PHILLIPS, Senior Circuit Judge.
    _________________________________________________________________
    Affirmed by unpublished per curiam opinion.
    _________________________________________________________________
    COUNSEL
    Edmund L. Gaines, HOMESLEY, JONES, GAINES, HOMESLEY &
    DUDLEY, Statesville, North Carolina, for Appellant. Mark T. Cal-
    loway, United States Attorney, Brian L. Whisler, Assistant United
    States Attorney, Charlotte, North Carolina, for Appellee.
    _________________________________________________________________
    Unpublished opinions are not binding precedent in this circuit. See
    Local Rule 36(c).
    _________________________________________________________________
    OPINION
    PER CURIAM:
    Lauren Eric Wilhelm appeals from his conviction and sentence for
    attempted possession of cocaine in violation of 
    21 U.S.C. § 841
    (a)
    (1994). We affirm.
    Wilhelm first contends that the district court erred in denying his
    motion for judgment of acquittal. We review this denial under a suffi-
    ciency of the evidence standard. See United States v. Brooks, 
    957 F.2d 1138
    , 1147 (4th Cir. 1992). To sustain the conviction, the evi-
    dence, when viewed in the light most favorable to the government,
    must be sufficient for a rational trier of fact to have found the essen-
    tial elements of the crime beyond a reasonable doubt. See Glasser v.
    United States, 
    315 U.S. 60
    , 80 (1942). In making this assessment, the
    government is entitled to all reasonable inferences from the facts
    established to those sought to be established. See United States v.
    Tresvant, 
    677 F.2d 1018
    , 1021 (4th Cir. 1982).
    To prove that a defendant is guilty of attempted possession of
    cocaine, the government must show: (1) culpable intent and (2) a sub-
    stantial step toward the commission of the offense that is strongly cor-
    roborative of that intent. See United States v. Pelton, 
    835 F.2d 1067
    ,
    1074 (4th Cir. 1987). Wilhelm contends that the evidence does not
    demonstrate a substantial step towards the commission of the offense
    because he did not have the money to purchase the drugs with him.
    At its essence, his argument is that without the presence of the pur-
    chase price, he "[cannot] take a substantial step necessary toward pos-
    sessing the cocaine."
    A "substantial step" is more than mere preparation, but it is less
    than the last act necessary to constitute completion of the substantive
    offense. See United States v. Sutton, 
    961 F.2d 476
    , 478 (4th Cir.
    1992). According to witness testimony, Wilhelm told Vargas, a per-
    2
    son cooperating with the police, that he had the money to complete
    the purchase. Taking this statement and its logical inferences in the
    light most favorable to the Government, a reasonable trier of fact
    could find that Wilhelm had the funds necessary to purchase the
    cocaine and that the only step that remained was to physically retrieve
    the money and exchange it for the drugs in question. We find that
    this, together with Wilhelm's actions in arranging the transaction,
    testing the cocaine for quality, indicating satisfaction with the drug,
    and directing the seller to follow him to the location where the money
    was waiting, satisfies the "substantial step" requirement of attempt.
    Accordingly, we affirm the district court's denial of Wilhelm's
    motion. We have considered the precedent proffered by Wilhelm in
    his formal brief and find it distinguishable from the facts of his case.
    Wilhelm next asserts that the district court erred in attributing three
    extra kilograms of cocaine to him under the principles of relevant
    conduct. He argues that the only evidence supporting this figure--his
    statement to the government's cooperating witness that he did not
    want to buy more than one kilogram of cocaine because he had just
    purchased three kilograms a few weeks prior--was not sufficiently
    reliable and therefore should not have been considered in calculating
    his sentence.
    A district court's factual finding of the relevant quantity of drugs
    at sentencing is reviewed for clear error. See 
    18 U.S.C. § 3742
    (e)
    (1994); United States v. Fletcher, 
    74 F.3d 49
    , 55 (4th Cir. 1996);
    United States v. Uwaeme, 
    975 F.2d 1016
    , 1018 (4th Cir. 1992). The
    quantity of a drug is not a substantive element of any the crimes
    involved. Rather, it is merely a sentencing factor which the Govern-
    ment must prove by a preponderance of the evidence. See United
    States v. Goff, 
    907 F.2d 1441
    , 1444 (4th Cir. 1990). In calculating
    drug amounts, the Guidelines do not require scientific or statistical
    precision; rather, the court may consider any relevant information,
    "``provided that the information has sufficient indicia of reliability to
    support its probable accuracy.'" See Uwaeme, 
    975 F.2d at 1021
    (emphasis in original) (quoting U.S. Sentencing Guidelines Manual,
    § 6A1.3(a), p.s. (1991)). Consistent with this policy, hearsay alone
    can provide sufficiently reliable evidence of quantity. See id.
    Reviewing the evidence presented at trial, we conclude that Wil-
    helm's statements, together with his actions, provide sufficient indicia
    3
    of reliability. Accordingly, the district court's use of these three kilo-
    grams in calculating Wilhelm's sentence was not erroneous. See
    United States v. Kinder, 
    946 F.2d 362
     (5th Cir. 1991) (affirming dis-
    trict court's finding regarding drug quantity in a similar situation). We
    therefore affirm Wilhelm's conviction and sentence. We dispense
    with oral argument because the facts and legal contentions are ade-
    quately presented in the materials before the court and argument
    would not aid the decisional process.
    AFFIRMED
    4