United States v. Evans ( 2000 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-4029
HAROLD EVANS,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Virginia, at Abingdon.
James P. Jones, District Judge.
(CR-99-6)
Submitted: July 20, 2000
Decided: September 15, 2000
Before NIEMEYER, MICHAEL, and TRAXLER, Circuit Judges.
_________________________________________________________________
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
_________________________________________________________________
COUNSEL
Nancy C. Dickenson, Lebanon, Virginia, for Appellant. Robert P.
Crouch, Jr., United States Attorney, Rick A. Mountcastle, Assistant
United States Attorney, Abingdon, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Harold Evans appeals his convictions for conspiracy to transport
and receive in interstate commerce stolen vehicles and goods, in vio-
lation of 18 U.S.C.A. § 371 (West 2000), and receiving stolen motor
vehicles, in violation of 18 U.S.C.A. § 2313 (West Supp. 2000), 18
U.S.C.A. § 2 (West 2000). He was convicted following a jury trial.
The district court sentenced Evans to concurrent sentences of seventy-
eight months imprisonment followed by three years of supervised
release, and ordered him to make restitution. Evans's attorney has
filed a brief in accordance with Anders v. California, 386 U.S. 738(1967), challenging the sufficiency of the evidence and the propriety
of the sentence.
Evans, who lived in Baltimore, Maryland, had a long-standing plan
with his brother, William, who lived in Smyth County, Virginia. The
brothers and other coconspirators stole trucks and heavy equipment
and transported them between Baltimore and Smyth County, often
altering the appearance and vehicle identification numbers before sell-
ing the vehicles. Harold Evans was an organizer of the conspiracy; he
taught others how to break into and start the trucks without keys,
often selected vehicles to be stolen, and directed what was to be done
with them. The other conspirators pled guilty, but Harold Evans was
tried and convicted by a jury.
We review the sufficiency of the evidence in the light most favor-
able to the Government, giving the benefit of all reasonable infer-
ences from the established facts. United States v. Tresvant, 677 F.2d
1018, 1021 (4th Cir. 1982). The evidence must be sufficient for a
rational trier of fact to have found the elements of the crime beyond
a reasonable doubt. Glasser v. United States, 315 U.S. 60, 80 (1942).
The Government introduced evidence at trial that Evans, his
brother, and others conspired to transport several motor vehicles
across state lines. The evidence was adequate to establish the agree-
ment between at least two people, and an overt act in furtherance of
that conspiracy. 18 U.S.C. § 371; see United States v. Chorman, 910
F.2d 102, 109 (4th Cir. 1990). The evidence also proved that the
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motor vehicles in question were stolen, that Evans possessed and
received the vehicles, and that they crossed state lines after being
stolen. 18 U.S.C. § 2313; see United States v. Mitchell, 876 F.2d
1178, 1180 (5th Cir. 1989). Therefore, the evidence was sufficient to
support the convictions.
Counsel also challenges Evans's sentence. We conclude that
Evans's 78 month sentence for conspiracy under 18 U.S.C. § 371 is
in excess of the statutory maximum of five years, or sixty months.
Evans did not object to this sentence below. Therefore, we review the
sentence for plain error. United States v. Olano , 507 U.S. 725, 731-32
(1993). Imposing a sentence in excess of the statutory maximum is
plain error. United States v. Johnson, 4 F.3d 904, 918 (10th Cir.
1993). Where the maximum statutory sentence is less than the mini-
mum of the guideline range, the statutory maximum serves as the
guideline sentence. U.S. Sentencing Guidelines Manual § 5G1.1(a)
(1998). See also Edwards v. United States, 523 U.S. 511, 515 (1998).
We therefore vacate the sentence imposed on that count. We find no
error in the remaining sentences.
We affirm Evans's convictions, and his sentences for receipt of
stolen motor vehicles. The sentence for the conspiracy count is
vacated, and the case is remanded for resentencing on that count. This
court requires that counsel inform her client, in writing, of his right
to petition the Supreme Court of the United States for further review.
If the client 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 the client. 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 IN PART, VACATED IN PART,
AND REMANDED
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