United States v. Boyd , 209 F. App'x 285 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-5034
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ERIK LAMONT BOYD, a/k/a Erik Boyd,
Defendant - Appellant.
No. 05-5035
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DEMETRIUS ALVIN BOYD, a/k/a Demetrius Boyd,
Defendant - Appellant.
No. 05-5047
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ANTHONY DEWAYNE GILLIS, a/k/a Toney Gillis,
Defendant - Appellant.
No. 05-5048
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
LIONEL CORNELIUS JOHNSON, a/k/a Leonel
Johnson,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Judge. (CR-05-98-HEH)
Submitted: October 6, 2006 Decided: December 8, 2006
Before WILKINSON, WILLIAMS, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
J. Paul Gregorio, INNSBROOK LAW GROUP, P.C., Glen Allen, Virginia,
for Appellant Anthony D. Gillis; Claire G. Cardwell, STONE &
CARDWELL, P.L.C., Richmond, Virginia, for Appellant Lionel C.
Johnson; Robert J. Wagner, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Richmond, Virginia, for Appellant Erik L. Boyd; Dennis M. Martin,
BROWN MARTIN, P.C., Richmond, Virginia, for Appellant Demetrius A.
Boyd. Chuck Rosenberg, United States Attorney, John S. Davis,
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Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Erik Boyd, Demetrius Boyd, Anthony Gillis, and Lionel Johnson
(collectively, Defendants) appeal their convictions and sentences
for various drug and firearm crimes. For the reasons that follow,
we affirm.
I.
Gillis, his brothers Erik Boyd and Demetrius Boyd, and his
friend Johnson were involved in a crack cocaine trafficking
conspiracy between 1998 and 2004. At trial, the Government
presented testimony from several witnesses who were customers of
the Defendants.
One of the early customers was Robin Williams. She had been
a neighbor of Gillis and his brothers, and she bought crack cocaine
from Demetrius Boyd three or four times per month for a four to six
month period. She also bought crack cocaine from Gillis and
Johnson.
Edward Roy was a regular customer of the Defendants. Roy
bought crack cocaine from Johnson three or four times a week for
several months. For a period of about eighteen months, Roy bought
crack cocaine from Gillis. Demetrius Boyd and Erik Boyd were
present for a few of these transactions. Roy also bought crack
cocaine from the Boyds between five to seven times. Roy traded
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silverware, a television, a VCR, paintings, and tools to Gillis for
crack cocaine.
The Defendants’ other customers who testified at trial
included Mark Holmes, who bought crack cocaine from each of the
Defendants; Calvin Johnson, who bought crack cocaine from Gillis,
Erik Boyd, and Johnson; and Anthony Johnson, who bought crack
cocaine from Gillis and Lionel Johnson.
According to Gillis’s estranged wife, Doris (Thompson) Gillis,
Gillis sold crack cocaine from their home. On four or five
occasions, Johnson brought “eight balls” of crack cocaine to
Gillis. Johnson also helped Gillis cut and bag crack cocaine on
the kitchen table. Doris Gillis testified that her husband had
between 13 to 15 customers.
Gillis frequently traded crack cocaine for his customers’
firearms. In crack-cocaine-for-firearms exchanges, he obtained
four shotguns and a rifle from Edward Roy, and a semiautomatic
rifle from Steve Parker. Gillis then took these firearms to
Washington, D.C., where he engaged in a reverse transaction -- a
firearms-for-crack-cocaine exchange -- to obtain supplies of crack
cocaine. Gillis also purchased firearms outright to use them in
firearms-for-crack-cocaine exchanges to obtain supplies of crack
cocaine. On two occasions, Gillis purchased firearms from pawn
shops and then told Doris Gillis that he was taking the firearms to
D.C. to trade for crack cocaine. On another occasion, Gillis had
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his girlfriend purchase a firearm for him to take to the D.C. area
to trade for crack cocaine. Each time Gillis returned with crack
cocaine.
The crack cocaine trafficking conspiracy unraveled on January
17, 2004, when Gillis and Johnson went to the home of Eugene and
Brenda Thompson -- the parents of Doris Gillis -- to leave a
package of drugs and guns for Erik Boyd to pick up later. As
Lionel Johnson sat behind the driver’s seat of a blue Escort,
Anthony Gillis went to the back door of the home and told the
Thompson’s other daughter, April Garriques, that he was leaving the
package under her mom’s car and that Erik Boyd would be by later
that day to retrieve it. When April Garriques went out later to
inspect what Gillis had left under the car, she saw guns and drugs
in a white trash bag. April Garriques called her sister Doris, who
in turn called the police. Deputy Danny Marks, a deputy with the
Essex County (Virginia) sheriff’s department, arrived thereafter
with Doris Gillis. Deputy Marks photographed the bag and then took
it to the sheriff’s office, where he observed an investigator
remove crack cocaine, a semiautomatic rifle, a shotgun, a sawed off
shotgun, and a pistol.
Later that day, Erik Boyd, Demetrius Boyd, and Johnson arrived
at the Thompson’s home. Erik Boyd went in the house to ask Eugene
Thompson if there was a package left for him by Gillis, and Eugene
Thompson answered in the negative. Erik and Demetrius Boyd then
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searched the house and surrounding property for the package. April
Garriques heard Demetrius Boyd talking on a cell phone, saying
“[t]he stuff’s not here. Where is the stuff?” (J.A. at 165.)
On June 1, 2005, the Defendants were jointly indicted in the
Eastern District of Virginia on a total of eighteen drug and
firearm-related counts. All of the Defendants were charged with
involvement in a conspiracy to distribute crack cocaine (count 1),
in violation of 21 U.S.C.A. § 846 (West 1999), and with conspiracy
to use and carry firearms during and in relation to a drug
trafficking offense (count 16), in violation of 18 U.S.C.A.
§ 924(c) (West 2000). Gillis and Johnson were charged with
possession with intent to distribute crack cocaine (count 2), in
violation of 21 U.S.C.A. § 841(a)(1) (West 1999); with possessing
certain firearms in furtherance of the crack cocaine distribution
conspiracy (count 14), in violation of 18 U.S.C.A. § 924(c); and
with possession of an unregistered sawed off shotgun (count 15), in
violation of 26 U.S.C.A. § 5861(d) (West 2002). Erik Boyd and
Demetrius Boyd were charged with attempted possession of crack
cocaine (count 3), in violation of 21 U.S.C.A. § 846. Gillis was
also charged with making false statements in connection with a
firearms purchase (counts 4, 7, 10), in violation of 18 U.S.C.A.
§ 922(a)(6) (West 2000); with making a false statement to a
firearms dealer (counts 5, 8, 11), in violation of 18 U.S.C.A.
§ 924(a)(1)(A); and with possessing certain firearms in furtherance
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of the crack cocaine distribution conspiracy (counts 6, 9, 12, 13,
17, 18), in violation of 18 U.S.C.A. 924(c).
At the conclusion of the Government’s case-in-chief, the
Defendants filed motions under Rule 29 of the Federal Rules of
Criminal Procedure for judgments of acquittal based on the
sufficiency of the evidence. The district court denied these
motions.
The jury returned a guilty verdict convicting Gillis on counts
1, 2, 5, 6, 8, 9, 11, 12, 13, 15, 17, 18; Johnson on counts 1 and
2; and Erik Boyd and Demetrius Boyd on count 1. The jury found
Gillis not guilty on counts 4, 7, 10, 14, and 16; Johnson not
guilty on counts 14, 15, and 16; and Erik Boyd and Demetrius Boyd
not guilty on counts 3 and 16. The district court sentenced Gillis
to 1748 months’ imprisonment, Johnson to 140 months’ imprisonment,
Erik Boyd to 38 months’ imprisonment, and Demetrius Boyd to 90
months’ imprisonment. The Defendants timely noticed appeals.
II.
“We review de novo a district court’s denial of a [Rule 29]
motion . . . for a judgment of acquittal.” United States v. Smith,
451 F.3d 209, 216 (4th Cir. 2006). In evaluating the sufficiency
of the evidence, we keep in mind that “a jury verdict ‘must be
sustained if there is substantial evidence, taking the view most
favorable to the Government, to support it.’” United States v.
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Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc) (quoting Glasser
v. United States, 315 U.S. 60, 80 (1942)). In the context of a
criminal trial, “substantial evidence is 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.”
Id. Finally, “we must remain cognizant of the fact that the jury,
not the reviewing court, weighs the credibility of the evidence and
resolves any conflicts in the evidence presented, and if the
evidence supports different, reasonable interpretations, the jury
decides which interpretation to believe.” Id. (internal quotation
marks omitted).
Demetrius Boyd, Eric Boyd, and Lionel Johnson argue that the
evidence was insufficient to support their convictions for being
part of the crack cocaine distribution conspiracy because much of
the evidence came from witnesses, such as felons and drug users,
who were not credible or reliable. This argument fails because
“[w]e do not review the credibility of the witnesses when we
evaluate whether there existed sufficient evidence to support a
conviction.” United States v. Wilson, 115 F.3d 1185, 1190 (4th
Cir. 1997). Moreover, the “uncorroborated testimony of one witness
. . . may be sufficient to sustain a conviction . . . .” Id.Gillis contends that the evidence is insufficient to support
his convictions for possessing firearms in furtherance of a drug
trafficking crime (counts 6, 9, 13) because, although witnesses
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testified that Gillis possessed firearms with the expressed intent
to take them to Washington, D.C. to trade them for crack cocaine,
no evidence was introduced showing that Gillis actually took the
firearms to D.C. and traded them for crack cocaine. This argument
is without merit. Gillis was charged with possessing firearms “in
furtherance of [a drug trafficking crime],” 18 U.S.C.A.
§ 924(c)(1), with the predicate drug trafficking crime being the
overarching crack cocaine distribution conspiracy. Gillis does not
dispute that he possessed the firearms identified in these counts;
rather, he contends that the evidence does not show that he
possessed the firearms “in order to promote or advance the
conspiracy to distribute crack cocaine.” (Appellants’ Br. at 48,
49.) To sustain a conviction under § 924(c)(1) for possession of
a firearm, the Government must present “evidence indicating that
the possession of a firearm furthered, advanced, or helped forward
a drug trafficking crime.” United States v. Lomax, 293 F.3d 701,
705 (4th Cir. 2002). Here, the Government presented such evidence
through the testimony of Gillis’s wife and girlfriend, which showed
that Gillis possessed the firearms with the intent to take them to
D.C. to trade them for crack cocaine and that he did, in fact,
return with crack cocaine. The evidence therefore showed that
Gillis possessed the firearms in furtherance of the crack cocaine
distribution conspiracy.
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Gillis also challenges the sufficiency of the evidence to
support his conviction on count 12 –- possession of a CZ
semiautomatic pistol in furtherance of the crack cocaine
distribution conspiracy –- because there was no evidence that
Gillis ever possessed the pistol. We disagree. The evidence
showed that Gillis signed the purchase form for the pistol, and the
pistol was found three months later in a car driven by Gillis’s co-
conspirator Demetrius Boyd. Based on this evidence, the jury
reasonably could have concluded that Gillis possessed the pistol
because he signed the purchase form and the pistol ended up in his
co-conspirator’s possession.
Relatedly, Gillis contends that the evidence was insufficient
to support his convictions on counts 17 and 18 for possessing
firearms in furtherance of the crack cocaine distribution
conspiracy because the firearms in those counts were obtained in
Gillis’s crack-cocaine-for-firearms trades, and, other than
receiving the firearms as payment for crack cocaine, there is no
evidence showing that the firearms were possessed by Gillis in
furtherance of the conspiracy. We conclude that accepting
possession of firearms as payment for crack cocaine is possession
in furtherance of a drug trafficking crime. Gillis’s willingness
to accept possession of firearms as payment for crack cocaine
furthered and advanced the conspiracy to distribute crack cocaine
because it facilitated transactions that might not have otherwise
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occurred. See Lomax, 293 F.3d at 705; see also United States v.
Frederick, 406 F.3d 754, 764 (6th Cir. 2005) (“[A] defendant’s
willingness to accept possession of a gun as consideration for some
drugs he wishes to sell does promote or facilitate that illegal
sale.” (internal quotation marks omitted)).
Gillis contends that the evidence was insufficient to convict
him on count 15 –- possession of a sawed off shotgun —- because the
jury acquitted him on count 14, which charged him with possessing
certain firearms, including the sawed off shotgun, in furtherance
of the crack cocaine distribution conspiracy. Again, we disagree.
Assuming there was an inconsistency in the jury’s verdict, “a
defendant cannot challenge his conviction merely because it is
inconsistent with a jury’s verdict of acquittal on another count.”
United States v. Thomas, 900 F.2d 37, 40 (4th Cir. 1990) (citing
United States v. Powell, 469 U.S. 57 (1984)). Moreover, Edward Roy
testified that he traded the shotgun to Gillis for drugs, and
Gillis’s girlfriend testified that she saw the shotgun around the
same time that Gillis had traded crack cocaine for other firearms.
Finally, we reject Gillis’s remaining challenges to his
firearm convictions. These challenges center on the credibility or
inconsistency of the Government’s witnesses, but the jury weighed
the credibility of the witnesses and resolved the inconsistencies
in testimony adversely to Gillis. Burgos, 94 F.3d at 862 (“[T]he
jury, not the reviewing court, weighs the credibility of the
12
evidence and resolves any conflicts in the evidence presented, and
if the evidence supports different, reasonable interpretations, the
jury decides which interpretation to believe.” (internal quotation
marks omitted)).
III.
Demetrius Boyd also contends that the district court abused
its discretion by introducing evidence under Rule 404(b) of the
Federal Rules of Evidence about two prior arrests of Boyd, in which
firearms, and at one of those arrests drugs, were found in his car.
Evidence of prior acts is admissible under Rule 404(b) if the
evidence is (1) relevant to an issue other than the defendant’s
character, (2) necessary to prove an element of the crime charged,
and (3) reliable. United States v. Queen, 132 F.3d 991, 997 (4th
Cir. 1997). If the prior act evidence meets these criteria, it may
be admitted unless its probative value is “substantially outweighed
by confusion or unfair prejudice.” Id.We conclude that the district court properly admitted evidence
of Demetrius Boyd’s prior arrests. Demetrius Boyd was charged with
conspiracy to distribute drugs and with conspiracy to use and carry
firearms in furtherance of the drug conspiracy. The district court
correctly concluded that possession of drugs and firearms “directly
link[ed] him with the conspiratorial design and the unlawful
confederation . . . .” (J.A. at 139F.)
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IV.
Johnson and Eric Boyd appeal their sentences of 140 months’
imprisonment and 38 months’ imprisonment, respectively. The
Defendants were sentenced after the Supreme Court’s decision in
United States v. Booker, 543 U.S. 220 (2005), and the district
court recognized that the sentencing guidelines were advisory only.
A.
Johnson contends that the district court violated his Sixth
Amendment rights because the district court calculated Johnson’s
advisory sentencing guideline range after finding him responsible
for distributing 49 grams of crack cocaine, even though the jury
did not find him responsible for a particular amount but found him
responsible for distributing between 5 to 49 grams of crack
cocaine. This argument is without merit. In United States v.
Hughes, 401 F.3d 540 (4th Cir. 2005), we directed district courts
to proceed under Booker’s remedial scheme by calculating the
advisory guideline range after making the appropriate findings of
fact. Id. at 546. Therefore, the district court did not violate
Johnson’s Sixth Amendment rights by determining the drug quantity
attributable to him. See United States v. Morris, 429 F.3d 65, 72
(4th Cir. 2005) (“The remedial portion of Booker held that
decisions about sentencing factors will continue to be made by
judges, on the preponderance of the evidence, an approach that
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comports with the [S]ixth [A]mendment . . . .” (internal quotation
marks omitted)). We therefore affirm Johnson’s sentence.
B.
Erik Boyd contends that the district court erred in
determining the quantity of drugs attributable to him for purposes
of calculating the advisory sentencing guideline range. We review
the district court’s factual findings for clear error and its legal
conclusions de novo. United States v. Allen, 446 F.3d 522, 527
(4th Cir. 2006).
Erik Boyd’s Presentence Report (PSR) determined that he was
responsible for distributing 1.6 grams of crack cocaine, based on
the trial testimony of Calvin Johnson, Mark Holmes, and Edward Roy.
The PSR calculated the total amount by adding together Erik Boyd’s
sales to Calvin Johnson (1 purchase of .20 grams), Mark Holmes (2
purchases of .20 grams), and Edward Roy (5 purchases of .20 grams).
Erik Boyd objected to the PSR’s calculations, contending that
Edward Roy was not a credible witness. Erik Boyd noted that Edward
Roy had testified at the preliminary hearing that he bought crack
cocaine from Erik Boyd only “once or twice.” The district court
overruled Erik Boyd’s objections to the PSR, concluding that the
trial evidence “amply supports” a finding that he sold Edward Roy
1 gram of crack cocaine.
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The reliability of Roy’s testimony is a credibility
determination –- an issue of fact for the district court’s
determination. United States v. Carter, 300 F.3d 415, 425 (4th
Cir. 2002). Having reviewed the record, we cannot say that the
district court clearly erred in determining that the quantity of
drugs attributed to Erik Boyd in the PSR was supported by a
preponderance of the evidence.*
Eric Boyd also contends that the district court erred in
failing to credit him with acceptance of responsibility. Although
Boyd elected to go to trial, rather than plead guilty, he relies on
an application note for the sentencing guidelines that states, “In
rare situations a defendant may clearly demonstrate an acceptance
of responsibility for his criminal conduct even though he exercises
his constitutional right to a trial.” U.S. Sentencing Guidelines
Manual § 3E1.1 n.2 (2004). The application note goes further to
explain that this occurs when the defendant is asserting and
preserving issues “that do not relate to factual guilt (e.g., to
make a constitutional challenge to a statute or to challenge the
applicability of a statute to his conduct).” Id.; see United
States v. Holt, 79 F.3d 14, 17 (4th Cir. 1996) (noting that a
*
Erik Boyd does not contend that the Government must prove
quantity beyond a reasonable doubt. (Appellant’s Br. at 101 (“The
government must prove by a preponderance of the evidence the
quantity of drugs attributable to a defendant for purposes of
sentencing.”).)
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defendant “could obtain a downward adjustment for acceptance of
responsibility, even after putting the government through its
burden of proving its case at trial, as long as [the defendant]
went to trial to preserve issues unrelated to factual guilt”).
Here, Boyd’s reasons for going to trial -- that the Government
alleged that he was responsible for more drugs than he was willing
to admit -- is directly related to factual guilt. The district
court therefore properly rejected Boyd’s claim for acceptance of
responsibility because “[u]ntil the government actually proved
[Boyd’s] guilt, there wasn’t the slightest hint of admission on his
part.” (J.A. at 1249-50.) We affirm Erik Boyd’s sentence.
V.
After reviewing the record, we conclude that the evidence was
sufficient to support the Defendants’ convictions, that the
district court did not err in admitting Rule 404(b) evidence of
Demetrius Boyd’s prior arrest, and that the district court did not
err in sentencing Lionel Johnson and Erik Boyd. We therefore
affirm the Defendants’ convictions and sentences. We dispense with
oral argument because the facts and legal conclusions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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