United States v. Ferguson ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4243
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DWAYNE FERGUSON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, District
Judge. (CR-04-13)
Submitted: February 22, 2006 Decided: March 28, 2006
Before TRAXLER, GREGORY, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Gary R. Hershner, Richmond, Virginia, for Appellant. Paul J.
McNulty, United States Attorney, Brian Lee Whisler, Olivia N.
Hawkins, Assistant United States Attorneys, Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Dwayne Ferguson appeals his conviction and 765-month
prison sentence for conspiracy to distribute heroin and cocaine
base in violation of 21 U.S.C. § 846 (2000), possession with intent
to distribute heroin and cocaine base in violation of 21 U.S.C.
§ 841(a)(1) (2000), maintaining a place for distribution of
controlled substances in violation of 21 U.S.C. § 856 (2000), and
possession of a firearm in furtherance of a drug trafficking crime
in violation of 18 U.S.C. § 924(c) (2000). Finding no reversible
error, we affirm.
Ferguson first challenges the sufficiency of the evidence
for his conviction. In reviewing a sufficiency challenge, “[t]he
verdict of a jury must be sustained if there is substantial
evidence, taking the view most favorable to the Government, to
support it.” Glasser v. United States, 315 U.S. 60, 80 (1942).
This court has defined “substantial evidence,” in the context of a
criminal action, as that evidence which “a reasonable finder of
fact could accept as adequate and sufficient to support a
conclusion of a defendant’s guilt beyond a reasonable doubt.”
United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en
banc).
The Government presented sufficient evidence to prove
that Ferguson directed the distribution of large quantities of
cocaine and heroin. The Government established that Ferguson was
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instrumental in obtaining and maintaining an apartment and a house
in order to store and distribute drugs. Ferguson knew of the
firearms possessed by members of the conspiracy, including four
found by the police at the house. The jury reasonably accepted as
sufficient the evidence to support Ferguson’s conviction, and we
have no authority to reweigh the evidence or disregard the jury’s
determination as to the credibility of the witnesses.
Ferguson next claims that the district court abused its
discretion when it denied his motion for a mistrial. The decision
whether to grant a motion for a mistrial is left to the broad
discretion of the trial court. United States v. Dorlouis, 107 F.3d
248, 257 (4th Cir. 1997). During the Government’s questioning of
a police detective, the Government asked when the police began
focusing their investigation on Ferguson. While the district court
sustained Ferguson’s objection and instructed the jury to disregard
the question, the court denied Ferguson’s motion for a mistrial.
The district court did not abuse its discretion because Ferguson
failed to establish that the jury was prejudicially influenced by
the Government’s question. See United States v. Seeright, 978 F.2d
842, 849 (4th Cir. 1992). Any prejudice suffered by Ferguson was
cured by the district court’s limiting instructions. See United
States v. Francisco, 35 F.3d 116, 119 (4th Cir. 1994).
Ferguson next claims that the district court abused its
discretion when it denied his motion for a continuance in order to
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secure the testimony of Shirley Elliott. A district court’s
refusal to grant a continuance is reviewed for abuse of discretion.
Morris v. Slappy, 461 U.S. 1, 11-12 (1983). Ferguson must show
that the testimony sought was relevant and that he exercised due
diligence. United States v. Clinger, 681 F.3d 221, 223 (4th Cir.
1982).
Roderick Parker lived at a halfway house before he joined
the drug conspiracy and testified that when Ferguson visited him he
did not check in or sign a visitor’s log. Elliott allegedly would
have testified that the policy of the halfway house was to have
every visitor check in and sign the visitors log and Ferguson did
not. The district court did not abuse its discretion because
Ferguson failed to establish that Elliott’s testimony was relevant.
Elliott’s testimony would have proven Ferguson’s name was not in
the visitor’s log, but could not prove that Ferguson did not visit
Parker. Regardless, the issue of whether or not Ferguson visited
Parker was not worthy of a delay in the trial to secure Elliott’s
testimony, especially considering that Ferguson had time to
subpoena Elliott before the end of the trial, but did not do so.
The district court did not err in denying Ferguson’s motion.
Ferguson also claims he was denied a fair trial due to
comments made by the district court about witnesses and evidence.
A new trial is required only if the court’s conduct “whether in
commenting or in interrogating witnesses during trial reaches such
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a level of prejudice that it denied any or all the appellants a
fair, as distinguished from a perfect, trial.” United States v.
Parodi, 703 F.2d 768, 776 (4th Cir. 1983). We have reviewed the
record and find no instances of improper comments by the district
court, much less any improper comments that were prejudicial.
Ferguson also claims that the district court abused its
discretion when it allowed a Drug Enforcement Administration agent
to testify about the local drug trade. See Kumho Tire Co. v.
Carmichael, 526 U.S. 137, 152 (1999). Distribution and prices of
drugs are not facts commonly known to a jury, and expert testimony
offered to help the jury understand the quantity and use of the
drugs is relevant to the charged offense. This court has allowed
government agents and police officers to testify as drug experts in
numerous cases about the drug trade. See e.g., United States v.
Hopkins, 310 F.3d 145, 150-51 (4th Cir. 2002); United States v.
Brewer, 1 F.3d 1430, 1435-36 (4th Cir. 1993). Thus, we find no
abuse of discretion.
Ferguson next claims the district court erred when it
denied his motion for a new trial. Pursuant to Rule 33 of the
Federal Rules of Criminal Procedure, a district court may grant a
defendant’s motion for a new trial “if the interest of justice so
requires.” Fed. R. Crim. P. 33(a). This court reviews the denial
of a Rule 33 motion for abuse of discretion. United States v.
Adam, 70 F.3d 776, 779 (4th Cir. 1995). Ferguson claims that
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Elliott’s testimony at a post-trial motion hearing constituted new
evidence worthy of a new trial. This evidence was not new evidence
as Ferguson was aware of it and sought to enter the evidence during
the trial but failed because he did not use due diligence to secure
Elliott’s testimony. In addition, the evidence was not newly
discovered evidence because it was merely impeaching evidence. See
United States v. Chavis, 880 F.2d 788, 793 (4th Cir. 1989).
Ferguson failed to establish any grounds for a new trial and the
district court did not abuse its discretion.
Ferguson’s final challenge is to the reasonableness of
his sentence. He initially claims that his sentence was
unreasonable because it was twice the sentencing guideline range.
Because he failed to raise this claim below, we review it for plain
error. United States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005).
Ferguson does not claim the district court improperly calculated
his guideline range for his convictions. Instead, his complaint
appears to rest on the fact that his sentence for the firearm
conviction ran consecutively to the drug conviction sentence.
Ferguson utterly ignores, however, that his firearm conviction
carries a minimum mandatory term of imprisonment of 360 months’
imprisonment that, by statute, may not run concurrently with any
other term of imprisonment, “including any term of imprisonment
imposed for the . . . drug trafficking crime during which the
firearm was possessed.” 18 U.S.C. § 924(c)(1)(B)(ii) and (D)(ii)
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(2000). We likewise reject as wholly unsupported by the record
Ferguson’s suggestion that the district court’s sentence may have
been tainted by impermissible racial considerations. Accordingly,
as the district court’s sentence was both reasonable and within the
statutorily prescribed range, the court did not commit plain error.
Accordingly, we affirm Ferguson’s conviction and
sentence. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
AFFIRMED
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