United States v. McMillion , 175 F. App'x 588 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4764
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CHARLES L. MCMILLION, SR.,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley. David A. Faber, Chief
District Judge. (CR-04-191)
Submitted: January 19, 2006 Decided: April 6, 2006
Before WIDENER, NIEMEYER, and MICHAEL, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Matthew A. Victor, VICTOR, VICTOR & HELGOE, L.L.P., Charleston,
West Virginia, for Appellant. Charles T. Miller, Acting United
States Attorney, Monica L. Dillon, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Charles L. McMillion was convicted in the Southern
District of West Virginia on six counts charging him with
conspiracy from December 13, 2001, to October 9, 2003, to
distribute at least 80 grams of oxycodone, in violation of 21
U.S.C. § 846; distribution of oxycodone on October 8, 2003, in
violation of 21 U.S.C. § 841(a)(1); distribution of oxycodone on
October 9, 2003, in violation of 21 U.S.C. § 841(a)(1); aiding and
abetting possession with intent to distribute oxycodone on October
9, 2003, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2;
use of a firearm on October 8, 2003, in furtherance of a drug
trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A); and
possession of two firearms on October 9, 2003, in furtherance of
a drug trafficking crime, in violation of 18 U.S.C. §
924(c)(1)(C). The district court sentenced McMillion to 51
months’ imprisonment for each of Counts One through Four, to be
served concurrently; a consecutive mandatory 5-year sentence for
Count Five; and a consecutive mandatory 25-year sentence for Count
Six. McMillion appeals on various grounds, none of which we find
meritorious. Accordingly, we affirm.
First, McMillion contends that the district court erred
in not granting his motion to suppress evidence that was seized
pursuant to a search because the warrant did not issue from a
state “court of record,” as required by Federal Rule of Criminal
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Procedure Rule 41(a). He contends that the state search became a
federal search because of a telephone call from state law
enforcement officers to an assistant U.S. Attorney seeking advice
and that the state magistrate was not a “court of record.”
Following a hearing, the district court concluded that Rule 41(a)
was not applicable because the search was not “federal in nature”
inasmuch as federal officers were not directly involved. See
United States v. Smith, 914 F.2d 565 (4th Cir. 1990), cert.
denied, 498 U.S. 1101 (1991). We agree with the district court
that there was no evidence of federal direction or approval of the
search, let alone any prior intention by federal prosecutors to
take over the case.
Second, McMillion contends that the district court erred
by imposing two consecutive sentences -- one for 5 years and one
for 25 years -- for convictions on Counts Five and Six under 18
U.S.C. § 924(c)(1) (stating that in case of a “second and
subsequent conviction under this subsection,” the defendant shall
“be sentenced to a term of imprisonment of not less than 25
years”). McMillion contends that the “second and subsequent
conviction” provision of § 924(c)(1)(C) does not apply here
because Counts Five and Six were linked to a single underlying
predicate offense involving drug trafficking. McMillion's theory
is that § 924(c)(1)(C) can only be triggered if there are separate
and distinct underlying predicate offenses. In this case, there
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were separate offenses for drug trafficking on October 8, 2003,
and October 9, 2003, the dates on which the firearms offenses were
committed. But even if the single conspiracy offense is taken as
the predicate drug offense, we have held that "consecutive
sentences under section 924(c)(1) are appropriate whenever there
have been multiple, separate acts of firearm use or carriage, even
when all of those acts relate to a single predicate offense."
United States v. Camps, 32 F.3d 102, 106 (4th Cir. 1994) (emphasis
added); see also United States v. Lucas, 932 F.2d 1210, 1221-23
(8th Cir. 1991) (holding that "each separate use of a firearm in
relation to a violent crime or drug trafficking crime is
punishable under section 924(c) regardless of whether other
section 924(c) charges are related to the same predicate
offense"). Accordingly, we find no error in the district court's
imposition of consecutive sentences for Counts Five and Six.
Third, McMillion contends that the district court erred
in denying his motion for acquittal based on insufficient evidence
as to Counts Two and Five. After reviewing the record, we find
that the government produced sufficient evidence on which a
reasonable jury could have convicted McMillion beyond a reasonable
doubt. That evidence included McMillion’s confession and the
testimony of a police informant. Although the informant’s
testimony was contradicted by other witnesses, the jury was
entitled to weigh the credibility of the witnesses in reaching its
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own conclusions. See United States v. Wilson, 118 F.3d 228, 234
(4th Cir. 1997).
Finally, McMillion contends that he was denied due
process because the jury, which rendered its verdict in less than
forty minutes, did not adequately deliberate about the charges
against him. Aside from the brevity of its deliberations, however,
there is no evidence that the jury failed to weigh all the
relevant evidence in making its determinations. See Segars v.
Atlantic Coast Line Railroad Co., 286 F.2d 767 (4th Cir. 1961) ("A
short period of deliberation by a jury before returning a verdict
does not establish the proposition that the jury did not properly
perform its duties") (quoting Patten v. Newton, 159 A.2d 809, 810
(N.H. 1960)).
Finding no merit to his assignments of error, we affirm.
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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