United States v. Starling , 220 F. App'x 238 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4981
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
SHAWN L. STARLING,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, Chief
District Judge. (CR-05-55)
Submitted: February 26, 2007 Decided: March 7, 2007
Before WILKINSON, KING, and DUNCAN, Circuit Judges.
Affirmed and remanded by unpublished per curiam opinion.
Michael S. Nachmanoff, Acting Federal Public Defender, Frances H.
Pratt, Research and Writing Attorney, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Alexandria, Virginia, for Appellant. Chuck Rosenberg,
United States Attorney, Stephen W. Miller, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Shawn L. Starling appeals from his convictions and sentence,
in the Eastern District of Virginia, for possession with intent to
distribute cocaine base, in violation of 21 U.S.C. § 841, and
possession of a firearm in furtherance of a drug trafficking crime,
in violation of 18 U.S.C. § 924(c). Starling makes three
contentions in this appeal: first, that the evidence was
insufficient to support a finding that he intended to distribute
cocaine; second, that the district court plainly erred in allowing
the prosecution to conduct a redirect examination that exceeded the
scope of cross-examination; and third, that his sentence was both
procedurally and substantively unreasonable. As explained below,
we reject each of these contentions and affirm.
I.
On the evening of September 16, 2004, Richmond Police officers
Thomas Gilbert and George McLaughlin were on a routine patrol on
Accommodation Street in Richmond, Virginia.1 The location that the
officers were patrolling “was a high crime area known for drug
activity.” J.A. 49.2 As they drove on Accommodation Street, the
1
The factual predicate for Starling’s convictions is drawn
from the trial record, and is spelled out in the light most
favorable to the prosecution. See United States v. Pasquantino,
336 F.3d 321, 332 (4th Cir. 2003) (en banc).
2
Citations herein to “J.A. ___” refer to the contents of the
Joint Appendix filed by the parties in this appeal.
2
officers noticed a group of individuals congregated in an area
behind some apartments. The group began to disperse as the
officers approached, and Starling was seen walking from the area
where the group had been, carrying a handgun. The officers stopped
Starling, retrieved the weapon (a .40 caliber Smith & Wesson
semiautomatic pistol), and, in searching him, discovered 9.69 grams
of cocaine base (commonly known as crack cocaine) in three separate
plastic packets. The cocaine was hidden in Starling’s underwear,
between his legs. Starling also had on his person a $50 bill, a
$20 bill, and a cellular telephone.
On February 3, 2005, Starling was indicted by the federal
grand jury in Richmond for possession with intent to distribute
cocaine base (“Count One”), possession of cocaine base (“Count
Two”), possession of a firearm in furtherance of a drug trafficking
crime (“Count Three”), and possession of a firearm by a user of
controlled substances (“Count Four”). On May 2, 2005, the district
court conducted a bench trial on the four charges in the
indictment. At the trial, the prosecution called Special Agent
James Terpening of the Drug Enforcement Administration (the “DEA”),
as an expert witness in the field of narcotics trafficking.
Terpening testified that the quantity and packaging of the cocaine
base found on Starling “would be highly unusual for personal use,”
and that he had “not seen a user who would possess this amount of
cocaine base.” J.A. 36. Terpening also testified that “street-
3
level distributors will have items such as cell phones for
communication, and they may or may not have firearms. They often
have firearms.” J.A. 35.
The prosecution also introduced the evidence of Officer
Gilbert concerning his encounter with Starling. In its direct
examination of Gilbert, the prosecution did not ask about the
currency and the cell phone found on Starling, nor did defense
counsel ask Gilbert about those items on cross-examination. In its
redirect examination of Gilbert, however, the prosecution asked
about “other items” that the police had recovered incident to
Starling’s arrest, and Gilbert responded that he had found “$70
U.S. currency, a $50 and a $20, and a cell phone.” J.A. 28. The
prosecution then introduced into evidence the cell phone and
photographs of the currency retrieved from Starling at the time of
his arrest. Defense counsel made no objection to the prosecution’s
redirect examination of Gilbert, and did not ask for recross-
examination.
After the parties had presented their respective cases, the
district court announced, from the bench, its findings of fact and
conclusions of law. The court found that the officers had arrested
Starling in an area known for drug activity, and that the quantity
of cocaine base in Starling’s possession at the time of his arrest,
along with his possession of a handgun, indicated that he was
engaged in the street-level distribution of drugs. J.A. 49-50.
4
The court also found that Starling’s cash and cell phone were
indicia of drug distribution. Id. Based on these findings, the
court reached a verdict of guilty on Counts One, Two, and Three.
The court determined, however, that the evidence did not support a
finding that Starling was a user of cocaine base, and consequently
found Starling not guilty on Count Four. Id. at 50-51.
On September 7, 2005, the district court conducted Starling’s
sentencing hearing. The court adopted the findings in the
Presentence Report (the “PSR”) that Starling had an offense level
of 26 and a criminal history category of I under the advisory
sentencing guidelines, and that his resultant guidelines range was
123 to 138 months’ imprisonment — 63 to 78 months on Count One and
60 months on Count Three, with those terms to be served
consecutively.3 Starling’s statutory minimum sentence was 120
months, the sum of separate 60-month statutory minimums for Counts
One and Three. Starling requested a 3-month downward variance from
the bottom of his guidelines range to the 120-month statutory
minimum, citing his lack of criminal history and the fact that he
had two dependents. Without expressly commenting on Starling’s
request for a downward variance, the court sentenced him to 123
months’ imprisonment, the shortest term consistent with his
advisory guidelines range. Starling did not object to any aspect
3
Because Count Two was a lesser included offense of Count One,
it was merged with Count One for sentencing purposes.
5
of the sentencing hearing. On the day Starling was sentenced, the
court entered a Statement of Reasons for his sentence (the
“Statement of Reasons”), which spelled out that “the sentence
herein was imposed after having considered the advisory Sentencing
Guidelines and the requirements of 18 U.S.C. § 3553(a)(1)-(3) and
(5)-(7), and, after having exercised discretion to ascertain a
reasonable sentence within the statutorily prescribed range.”4
Starling has appealed his convictions on Counts One and Three,
as well as his sentence, and we possess jurisdiction under 28
U.S.C. § 1291.5II.
In reviewing a contention concerning the sufficiency of
evidence in support of a conviction, we view the evidence in the
light most favorable to the prosecution, and inquire whether there
is evidence that a reasonable finder of fact could accept as
adequate and sufficient to establish the defendant’s guilt beyond
a reasonable doubt. See United States v. Burgos, 94 F.3d 849, 862
(4th Cir. 1996) (en banc); see also Glasser v. United States, 315
U.S. 60, 80 (1942) (“The verdict of a jury must be sustained if
4
The district court’s Statement of Reasons is found at J.A.
112-14.
5
Starling acknowledges that his conviction on Count Two was
free of error, and does not challenge it on appeal. See
Appellant’s Br. 22 (“[T]he only offense of which Mr. Starling could
be properly convicted was the § 844 simple possession offense.”).
6
there is substantial evidence, taking the view most favorable to
the Government, to support it.”).
When an appellant raises a contention of error that he failed
to present to the district court in the first instance, we review
it for plain error only. See Fed. R. Crim. P. 52(b); United States
v. Olano, 507 U.S. 725, 731-32 (1993). A defendant seeking to
overturn a ruling under the plain-error test bears the burden of
showing (1) that an error occurred, (2) that it was plain, and (3)
that it affected his substantial rights. Olano, 507 U.S. at 732.
The correction of plain error lies within our discretion, which we
“should not exercise . . . unless the error seriously affects the
fairness, integrity or public reputation of judicial proceedings.”
Id. (internal quotation marks and brackets omitted).
Our task in reviewing a district court’s sentence is to
determine whether the sentence is within the statutorily prescribed
range and is reasonable. United States v. Moreland, 437 F.3d 424,
433 (4th Cir. 2006). Importantly, reasonableness review involves
both procedural and substantive components. Id. at 434.
III.
Starling makes three contentions of error on appeal. First,
he maintains that there was insufficient evidence for a reasonable
trier of fact to find beyond a reasonable doubt that he intended to
distribute the cocaine base that was found hidden in his clothing.
7
Second, he asserts that the district court plainly erred in
allowing the prosecution, in its redirect examination of Officer
Gilbert, to introduce evidence of the cell phone and cash that were
found on his person when he was arrested, because those items were
not subject to his counsel’s cross-examination of Gilbert.
Starling further contends that we should notice this assertedly
plain error and vacate his convictions based thereon. Third,
Starling maintains that his sentence was procedurally unreasonable
because the reasons for it were not adequately explained in open
court, and substantively unreasonable because it was greater than
necessary to comply with the purposes set forth in § 3553(a).
A.
Starling first contends that the evidence was insufficient for
the district court to conclude that he intended to distribute
cocaine base. Before we address Starling’s specific contentions on
this issue, we observe that the record reveals substantial support
for the verdict. Under the evidence, Starling was apprehended
carrying a handgun and 9.69 grams of cocaine base packaged in three
separate plastic-bag corners, in an area known for drug activity
and near a group of individuals who scattered when the police
approached. Agent Terpening testified that the quantity of cocaine
base found in Starling’s possession was inconsistent with personal
use and, indeed, that in Terpening’s career with the DEA he had
8
“not seen a user who would possess this amount of cocaine base.”
J.A. 36. Our precedents leave no doubt that “intent to distribute
may in proper circumstances be inferred from the amount of
possession.” United States v. Welebir, 498 F.2d 346, 350 (4th Cir.
1974). Terpening also testified that individuals engaged in drug
distribution often have firearms. Our decisions have acknowledged
that the possession of a handgun along with a controlled substance
is strong circumstantial evidence of intent to distribute, as is
packaging of drugs in a manner that would facilitate their sale.
See United States v. Fisher, 912 F.2d 728, 731 (4th Cir. 1990).
The possession of a large quantity of a controlled substance in an
area known for its high level of drug trafficking is likewise
evidence of intent to distribute. See United States v. Collins,
412 F.3d 515, 518 (4th Cir. 2005). The fact that the group of
people around Terpening dispersed when the police officers
approached provides further support for the verdict.
Starling offers five reasons that the evidence we have
summarized above was insufficient to support the verdict. He
begins by asserting that the prosecution’s decision to charge him
(in Count Two) with simple possession, in addition to possession
with intent to distribute, amounts to an admission that the
evidence on the distribution charge was inadequate to convict him.
Next, he observes that other defendants (in matters entirely
unrelated to this one) have possessed more cocaine base than he,
9
yet been acquitted of possession with intent to distribute; on that
basis, he maintains that the district court erred in finding that
the amount of cocaine base he possessed was inconsistent with mere
personal use. Starling next contends that the cell phone, cash,
and handgun found on his person do not indicate that he intended to
distribute cocaine base. In addition, he asserts that the location
in which he was hiding his cocaine base — in his underwear,
between his legs — indicates that he did not intend to distribute
it. Finally, he offers a list of factors that have, in other
cases, demonstrated an intent to distribute, but that were not
present here.
Starling’s first two contentions on this point simply
misapprehend the nature of our inquiry. Our task is to determine
whether the evidence presented was sufficient for a reasonable
trier of fact to find beyond a reasonable doubt that Starling
intended to distribute cocaine base. The lesser included offense
with which Starling was also charged has no bearing on the body of
evidence that was before the district court, and thus is immaterial
to our review of the sufficiency of that evidence. Similarly
misplaced is Starling’s reliance on precedents in which defendants
who possessed more cocaine base than he have been acquitted of
possession with intent to distribute. For one thing, the decisions
on which he relies are inapposite. More fundamentally, though,
even if Starling were to identify a precedent in which the
10
defendant was acquitted on facts identical to these, he would not
thereby establish that no reasonable trier of fact could reach a
different result.
The third point in Starling’s attack on the sufficiency of the
evidence is that the items he was carrying, other than the cocaine
base itself, do not indicate an intent to distribute. With regard
to the cell phone and the cash, he simply asserts (apparently for
the first time on appeal, and with no reference to the record) that
because cell phones have become ubiquitous in America and $70 is
not an abnormally large sum to carry on one’s person, those items
are no indication of intent to distribute the cocaine base that he
possessed. That contention misses the point. Carrying $70 and a
cell phone may not, by itself, be sufficient to demonstrate an
intent to distribute drugs. But according to Agent Terpening’s
testimony, such factors are at least somewhat probative, in that an
intent to distribute is more likely in their presence than in their
absence.
With respect to the handgun, Starling maintains that because
he was in a high-crime area, it was plausible that he was carrying
the weapon merely for self-defense. The existence of a conceivable
alternative explanation for his possession of the pistol, however,
does not diminish the strength of Terpening’s testimony on the
connection between handguns and drug distribution. And, of course,
it in no way weakens the most significant evidentiary support for
11
the court’s verdict: Starling’s possession of cocaine base in a
quantity inconsistent with personal use, packaged for convenient
distribution.
Starling’s fourth proffered reason that the evidence was
insufficient is that the cocaine base was found in his underwear,
between his legs. He contends on appeal that, if he had intended
to distribute the cocaine, he would have stored it in a more
accessible location, such as his pocket or the top of his
underwear. Starling fails, however, to identify any evidence of
record that the discovery of cocaine between his legs is
inconsistent with drug distribution. As a result, his speculation
in this regard has no bearing on whether the evidence before the
court was sufficient to support his convictions.
Starling’s fifth and final criticism of the sufficiency of the
evidence suffers from the same defect. He lists a number of
possible indicia of intent to distribute that he claims were not
present here (e.g., no plastic sandwich bags or razors), but points
to no evidence in the record that the absence of these additional
indicia makes it unlikely that he lacked such an intent. An
absence of factors whose significance was not mentioned at trial,
much less established in the record, does not render insufficient
the body of evidence that was actually adduced.
In sum, the evidence that Starling intended to distribute the
cocaine base that he possessed was more than sufficient to support
12
the district court’s guilty verdict on Counts One and Three.
Starling’s assertions to the contrary are thus without merit.
B.
Starling next contends that the district court committed plain
error in allowing the prosecution to address, in its redirect
examination of Officer Gilbert, matters not raised in defense
counsel’s cross-examination of Gilbert — specifically, the cell
phone and cash discovered on Starling when he was arrested.
Starling cites several commentators’ observations that redirect
examination is typically limited to subjects brought up in cross-
examination. He is incorrect, however, in asserting that a party’s
redirect can never address matters not discussed in his opponent’s
cross-examination. The Rules of Evidence give trial courts
discretion over “the mode and order of interrogating witnesses and
presenting evidence,” and do not bar the exercise of that
discretion to allow inquiry into new subjects on redirect. See
Fed. R. Evid. 611(a). Indeed, the very authorities that Starling
misleadingly quotes in support of his position expressly recognize
that a court may allow redirect on matters not raised in direct or
cross-examination. See I Kenneth S. Broun, McCormick on Evidence
§ 32 (6th ed. 2006) (“[U]nder his general discretionary power to
vary the normal order of proof, the judge may permit the party to
bring out on redirect examination relevant matter which through
13
oversight he failed to elicit on direct.”); 81 Am. Jur. 2d
Witnesses § 740 (2004) (recognizing “court’s discretion to allow on
redirect examination questioning as to matters which properly
should have been brought out on direct examination”). Starling’s
assignment of error in this regard is thus meritless. Because the
district court committed no error at all in connection with the
prosecution’s redirect examination of Gilbert, Starling’s plain-
error contention on that point necessarily fails.
C.
1.
Finally, Starling maintains that his sentence is unreasonable
and must be vacated. Specifically, he asserts that his sentence is
procedurally unreasonable because the reasons for it were not
explained in open court, and substantively unreasonable because it
was greater than necessary to comply with the purposes of
sentencing set forth in § 3553(a). We reject both of these
contentions.
Section 3553(c) provides that “[t]he court, at the time of
sentencing, shall state in open court the reasons for its
imposition of the particular sentence.” This provision also
mandates that, if the sentence is within the advisory guidelines
range and that range exceeds 24 months, the court must state its
reason for selecting a sentence at a particular point within the
14
range. 18 U.S.C. § 3553(c)(1). Starling asserts that the district
court failed to provide any explanation in open court for the
sentence it imposed. The record, however, contradicts that
assertion: the court expressly stated that the basis for the
sentence it imposed was its adoption of the PSR’s findings
regarding Starling’s offense level, criminal history category, and
advisory guidelines range.
The court did fail to explain its selection of the bottom of
Starling’s guidelines range — 123 months — as the appropriate
sentence. The court’s omission in that regard, however, does not
render Starling’s sentence procedurally unreasonable. To the
contrary, the court’s sentencing procedure was consistent with the
standards established in our decisions: it correctly calculated
Starling’s advisory guidelines range and, as explained in its
written Statement of Reasons, found a 123-month sentence to be
consistent with the requirements of § 3553(a) as applied to this
matter. Moreover, as we have observed, the court orally indicated
that Starling’s sentence was chosen because it comported with the
sentencing guidelines. When a court imposes a sentence within the
advisory guidelines range, a procedure such as that conducted here
is reasonable. See United States v. Moreland, 437 F.3d 424, 432-33
(2006) (spelling out proper sentencing procedure in wake of United
States v. Booker, 543 U.S. 220 (2005)).
15
Starling next contends that his sentence was substantively
unreasonable because it was greater than necessary to comply with
the purposes of sentencing spelled out in § 3553(a). We have
recognized that a sentence within the advisory guidelines range is
presumptively reasonable. See United States v. Green, 436 F.3d
449, 456-57 (4th Cir. 2006).6 In seeking to overcome the
presumption that his sentence is reasonable, Starling relies mainly
on his two dependents and his lack of a prior criminal history. He
fails to explain, however, how the fact that he has dependents
distinguishes his situation from that contemplated by the advisory
guidelines. Moreover, because Starling’s lack of a criminal record
has already been accounted for in the calculation of his criminal
history category, it does not warrant a downward variance from his
guidelines range. Starling also contends that the amount of
cocaine base seized from him was too small to justify the sentence
he received, but the quantity of drugs he was carrying was likewise
reflected in his guidelines range, and is thus not a sound basis
for a downward variance. In these circumstances, we conclude that
6
Starling also seeks to persuade us to overrule Green’s
holding that a sentence within the advisory guidelines range is
presumptively reasonable. His position in that regard is
unavailing, for “[i]t is well settled that a panel of this court
cannot overrule, explicitly or implicitly, the precedent set by a
prior panel of this court. Only the Supreme Court or this court
sitting en banc can do that.” United States v. Chong, 285 F.3d
343, 346 (4th Cir. 2002) (internal quotation marks omitted).
16
Starling’s sentence was both procedurally and substantively
reasonable, and we must reject his contention to the contrary.
2.
Although Starling’s sentence was reasonable, there is a
procedural defect concerning his sentencing that warrants remand.
The district court’s Judgment in a Criminal Case reflects that
Starling was subject to separate $100 assessments for Counts One
and Two. See J.A. 85. That instruction contradicts the court’s
oral order at Starling’s sentencing hearing that he pay a single
$100 assessment for the merged convictions on Counts One and Two.
See id. at 78. We thus remand for the court to correct this
clerical error in its written sentencing instructions. See United
States v. Morse, 344 F.2d 27, 30-31 (4th Cir. 1965).
IV.
Pursuant to the foregoing, we affirm Starling’s convictions
and sentence, and remand for the Judgment in a Criminal Case to be
corrected to reflect the sentence imposed.7
AFFIRMED AND REMANDED
7
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before us and
argument would not aid in the decisional process.
17