United States v. Viar , 277 F. App'x 266 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4171
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROGER H. VIAR, SR.,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Lynchburg. Norman K. Moon, District
Judge. (6:03-cr-30073-nkm-13)
Argued: January 30, 2008 Decided: May 5, 2008
Before MICHAEL, TRAXLER, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Rhonda Lee Overstreet, LUMSDEN & OVERSTREET, Roanoke,
Virginia, for Appellant. William Frederick Gould, OFFICE OF THE
UNITED STATES ATTORNEY, Charlottesville, Virginia, for Appellee.
ON BRIEF: John L. Brownlee, United States Attorney, Roanoke,
Virginia, Jean B. Hudson, Assistant United States Attorney, OFFICE
OF THE UNITED STATES ATTORNEY, Charlottesville, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Roger H. Viar, Sr. appeals from his convictions and sentence
for a methamphetamine conspiracy, in violation of 21 U.S.C. § 846(Count One), and possession with intent to distribute
methamphetamine, in contravention of 21 U.S.C. § 841(a)(1) (Count
Two). At the conclusion of a trial conducted in the Western
District of Virginia in April 2005, a jury convicted Viar of both
offenses and made a forfeiture award to the Government. Viar
sought post-trial relief, contending that the evidence was
insufficient to justify the verdict and the forfeiture award. The
district court denied relief, ruling that Viar’s convictions were
adequately supported by the evidence, and also that the forfeiture
award was warranted. See United States v. Viar, No. 6:03-cr-30073
(W.D. Va. May 12, 2005) (the “Opinion”).1 In January 2006, Viar
was sentenced to 188 months of imprisonment. On appeal, Viar
contends that his convictions should be vacated because there was
insufficient evidence to support them, and that his sentence is
defective for multiple reasons. As explained below, we reject
Viar’s appellate contentions of error and affirm his convictions
and sentence.
1
The Opinion can be found at J.A. 475-81. (Citations to
“J.A. ” refer to the Joint Appendix filed by the parties in this
appeal.)
2
I.
A.
On September 5, 2003, the initial indictment in this case (the
“First Indictment”) was returned by a grand jury in the Western
District of Virginia, charging eight defendants — but not Viar —
with, inter alia, a drug conspiracy to distribute 500 grams or more
of methamphetamine.2 Later in September 2003, the apparent ring-
leader of the conspiracy, James Davis, was arrested and began
cooperating with the authorities. He immediately provided them
with information about Viar. On March 1, 2004, he pleaded guilty
to the conspiracy offense alleged in Count One of the First
Indictment. Pursuant to his plea agreement with the Government,
Davis continued to cooperate, seeking a “substantial assistance”
reduction in his sentence.3
On April 26, 2004, Viar was apprehended by the Virginia State
Police while driving his Ford pick-up truck on a public highway in
Campbell County, Virginia.4 The officers were responding to
2
In discussing the controlled substance methamphetamine, we
mean a substance or mixture containing methamphetamine.
3
Four of Davis’s codefendants in the First Indictment,
Clayton Keyes, William Keyes, Joseph Keyes, and Denise Hamilton,
also pleaded guilty to the Count One conspiracy offense on March 1,
2004. A sixth defendant, Donald Owens, pleaded guilty to Count One
on July 1, 2004.
4
We recite the facts in the light most favorable to the
Government as the prevailing party at trial. See United States v.
Kelly, 510 F.3d 433, 435 (4th Cir. 2007).
3
information secured in the drug investigation, including a tip from
Viar’s wife, who had found illicit drugs in his truck. The
officers searched Viar’s vehicle and seized a plastic bag
containing 25.3 grams of methamphetamine from the glove box, as
well as over $26,000 in cash from a bag in the rear passenger
compartment. They also searched Viar’s person, finding $6187 in
cash, and a check made out to him for $857.31.
On July 7, 2004, the grand jury returned a superseding
indictment in this case (the “Superseding Indictment”), charging
Viar and seven additional codefendants, including two named in
Count One of the First Indictment who had not yet pleaded guilty
(Frank Padgett and Me’Chelle Baldwin), plus several drug suppliers
from California. The eight defendants named in the Superseding
Indictment were charged in the Count One conspiracy, as well as the
forfeiture allegation. Viar was separately charged in Count Two
with possession of methamphetamine with intent to distribute,
arising from the events of April 26, 2004.
The Count One conspiracy alleged in the Superseding Indictment
is materially and substantially the same as the Count One
conspiracy alleged in the First Indictment — the only distinctions
relate to the conspirators named and the date the conspiracy
4
commenced.5 The Superseding Indictment alleged, in pertinent part,
that
beginning sometime in or about 1996, and continuing
through the return date of this Superseding Indictment,
in the Western District of Virginia and elsewhere, the
defendants, FRANK P. PADGETT, III, MICHELLE [ME’CHELLE]
M. BALDWIN, aka “Maude,” DAVID M. BINGHAM, CURTIS L.
MORTON, Sr., ROCK A. ROSSER, aka “Rocky,” ROGER L.
WOODCOCK, ROGER H. VIAR, Sr., and DAVID M. COLINGER, aka
“Big O,” did knowingly and intentionally . . . conspire,
. . . and agree together, and with diverse other persons
known and unknown to the Grand Jury, to knowingly and
intentionally distribute and possess with intent to
distribute five hundred (500) grams or more of a mixture
or substance containing a detectable amount of
methamphetamine.
J.A. 13-14. In both indictments, the Count One conspiracy
allegedly occurred “in the Western District of Virginia and
elsewhere,” and involved, in addition to those named as defendant
conspirators, “diverse other persons known and unknown to the Grand
Jury.” Id.After the Superseding Indictment was returned, an arrest
warrant was issued for Viar, and, on July 14, 2004, officers
proceeded to his home and placed him under arrest. Upon searching
Viar, the officers found a plastic bag containing a quarter to a
half ounce of methamphetamine, plus $2719 in cash. After obtaining
consent from Viar’s wife to search the residence and the vehicles
on the Viar property, the officers seized two bundles of cash from
the trunk of a Cadillac parked in front of the home — one valued
5
The First Indictment alleges that the conspiracy began in
1998, while the Superseding Indictment alleges it began in 1996.
5
at $7700, and the other at $24,120. They also seized three
tractor-trailer trucks belonging to Viar.
Defendants Padgett and Baldwin (named as conspirators in Count
One of both indictments) thereafter pleaded guilty to the Count One
conspiracy. Coconspirators Bingham, Morton, Woodcock, and Colinger
— each named for the first time in the Superseding Indictment —
also pleaded guilty to the Count One conspiracy. The two remaining
named conspirators in the case, Viar and Rosser, put the
prosecution to its proof and proceeded to trial.
B.
1.
Viar and Rosser’s jury trial began on April 5, 2005, in
Lynchburg. During the three-day trial, the prosecution presented
several witnesses, seeking to prove that Viar and Rosser had been
involved in the methamphetamine distribution conspiracy alleged in
Count One.6 Woodcock, one of the convicted conspirators, testified
that Rosser regularly moved multiple kilograms of methamphetamine
from California to Virginia, where he sold quantities of the
substance to Woodcock and convicted conspirator Davis (who then
distributed the methamphetamine in the Lynchburg area). Davis was
a key prosecution witness, and testified that, after a falling out
6
Rosser pleaded guilty to Count One on April 6, 2005, the
second day of trial, and was thereafter not involved in the
proceedings.
6
with Woodcock, he obtained methamphetamine from other California
sources, including convicted conspirator Bingham.
In 2003, Davis first met Viar and began obtaining quantities
of methamphetamine from him, while continuing to be supplied by
Bingham and others. Davis had several regular customers, including
convicted conspirator Baldwin, who would occasionally pick up
packages of methamphetamine for Davis. Davis maintained an
organization of several conspirators who purchased packages of
methamphetamine, then repackaged and sold the substance in smaller
quantities. Davis obtained ten to twelve ounces (280 to 336 grams)
of methamphetamine from Viar over the course of a few months in
2003. On one occasion, Jeremy Carroll, another prosecution
witness, saw Viar hand Davis a white package while Viar was sitting
in his pick-up truck. The package contained approximately two
ounces of methamphetamine, and Davis immediately sold part of it to
Joseph Keyes (a conspirator charged in the First Indictment).
Davis admitted being personally responsible for buying and selling
at least fifteen kilograms of methamphetamine.
The prosecution also called Jeffrey Roatenberry, a driver in
Viar’s logging business, who had obtained “eight-ball quantities”
(approximately 3.5 grams) of methamphetamine from Viar at least
once a week over a nine-month period in 2002 and 2003, for a total
of about 126 grams. Viar later sold Roatenberry “ounce” quantities
of methamphetamine, at least weekly, for a period of one-and-a-half
7
to two years, conservatively estimated at a total of 2016 grams.
Roatenberry personally used some of these drugs and sold the
balance to others. One of Viar’s drug sources was Eddie Evans, who
Roatenberry introduced to Viar (Roatenberry and Evans were never
charged in the Count One conspiracy). On one occasion, Roatenberry
obtained three ounces of methamphetamine from Evans and delivered
it to Viar. Roatenberry also assisted Viar in dividing large
quantities of methamphetamine into smaller quantities for resale
purposes. Viar contacted Evans at least once every other week, and
Viar told Roatenberry that he purchased methamphetamine from
sources other than Evans. Viar once asked Roatenberry to hold
$60,000 in cash for him and, on another occasion, told Roatenberry
about $100,000 in cash hidden in the trunk of his wife’s car.
James Mitchell and John Henry Preas — who were not charged in
the Count One conspiracy — also testified for the prosecution, and
admitted obtaining “half-ounce to ounce” quantities of
methamphetamine from Viar. Viar asked Mitchell to deliver
methamphetamine to Preas because it was easier for Preas to deal
with Mitchell. During this activity, Mitchell received
approximately eight ounces (224 grams) of methamphetamine from
Viar, and he used the substance to supply Preas and others.
Mitchell paid Viar $1200 an ounce up front but, when he lacked
sufficient funds, paid Viar after selling the methamphetamine.
Mitchell was involved in this arrangement with Viar for five or six
8
months in 2002 and 2003. According to Preas, Viar was a user as
well as a distributor of methamphetamine.
Viar’s wife, Ruby, presented some exculpatory evidence on
behalf of her husband. She explained that Viar had won $18,000 in
Atlantic City the weekend before he was arrested in April 2004.
She also said that Viar routinely kept a few thousand dollars with
him for his logging business. Viar called three witnesses and did
not testify on his own behalf.
2.
Viar made two motions for judgment of acquittal during the
trial — at the close of the prosecution’s case-in-chief and again
at the close of all the evidence — both of which were denied.7 On
7
In connection with Viar’s argument that the evidence failed
to show that he was involved in the overall conspiracy alleged in
Count One, the court instructed the jury on single conspiracy-
separate conspiracy principles, and on the question of whether
Count One failed to allege the conspiracy established by the
evidence. That instruction was, inter alia, in the following
terms:
In order to sustain its burden of proof on [Count One],
the government must show that the single conspiracy
alleged in Count One of the indictment existed. Proof of
separate or independent conspiracies is not sufficient.
. . . Even if the evidence in the case shows that a
defendant was a member of some conspiracy, but that this
conspiracy is not the single conspiracy charged in the
indictment, then you must acquit the defendant of this
charge.
Jury Instructions at 6-7, United States v. Viar, No. 6:03-cr-30073
(W.D. Va. May 12, 2005).
9
April 7, 2005, on completion of the initial phase of trial, the
jury returned a guilty verdict against Viar on the Count One
conspiracy and the Count Two substantive offense. On completing
the forfeiture phase, the jury returned its Special Verdict,
consisting of a $500,000 money judgment, plus the forfeiture of
$40,000 in cash and three large trucks. On April 13, 2005, Viar
again moved for judgment of acquittal, arguing that his conviction
on the Count One conspiracy was defective in two respects: (1) the
prosecution’s evidence was insufficient to show that he had
conspired to distribute 500 grams or more of methamphetamine, and
(2) even if shown to be a conspirator, the prosecution had failed
to prove that he was involved in the overall conspiracy alleged in
Count One. Viar also contended that his conviction on the Count
Two substantive offense, as well as the forfeiture verdict, lacked
sufficient supporting evidence.
By its Opinion of May 12, 2005, the district court denied
Viar’s request for post-trial relief. The court found sufficient
evidence — including the testimony of Davis (as corroborated by
Carroll) — to implicate Viar and establish his guilt on the Count
One conspiracy. See Opinion 3-4.8 As to Count Two, the court
8
In its Opinion, the district court explained its ruling on
Viar’s evidence contention on Count One, in part, as follows:
Six government witnesses testified as to Viar’s
distribution of methamphetamine and his involvement in
the conspiracy. This testimony established that
10
concluded that the methamphetamine seized from Viar on April 26,
2004, combined with the amount of cash he then possessed, permitted
the jury to infer his intent to distribute drugs. See id. at 4.
Finally, the court ruled that there was substantial evidence to
support the forfeiture award. See id. at 4-6.
C.
A presentence report (“PSR”) was then prepared, attributing
11.8 kilograms of methamphetamine to Viar. The PSR reached this
amount by converting the $500,000 forfeiture money judgment to a
drug quantity, at the rate of $1200 per ounce of methamphetamine.
Viar objected to the drug quantity recommended by the PSR,
asserting that the testimony of Roatenberry, Davis, and Mitchell
was inconsistent and unreliable, and arguing that no more than 538
grams of methamphetamine should be attributed to him.9 Viar also
Defendant was distributing methamphetamine to multiple
buyers. The government also presented evidence linking
James Davis and his suppliers in California to Virginia
residents, including Defendant Roger Viar. This evidence
included Davis’s testimony that he had purchased
methamphetamine from Defendant on multiple occasions.
Davis’s testimony was corroborated by the testimony of
Jeremy Carroll. Davis’s testimony provided the necessary
link connecting Defendant to the overall conspiracy.
Opinion 3.
9
During plea negotiations, Viar had offered to admit to 538
grams of methamphetamine, but the Government would agree to his
guilty plea on the Count One conspiracy only if he admitted to 15
kilograms.
11
objected to the PSR’s recommendation that he be denied an
adjustment for acceptance of responsibility. The PSR concluded
that, although Viar conceded during plea negotiations that he
purchased significant amounts of methamphetamine, he admitted
selling only small quantities to Baldwin, Mitchell, and Preas.
According to the PSR, because Roatenberry, Mitchell, Preas, and
Davis testified that they obtained larger quantities from Viar than
he was willing to acknowledge, Viar had falsified the extent of his
involvement in the Count One conspiracy.
The district court overruled Viar’s objections and adopted the
PSR’s Sentencing Guidelines calculations, resulting in a total
offense level of 36, a criminal history category of I, and an
advisory sentencing range of 188 to 235 months. Viar then argued
that he should be sentenced below the advisory range because he did
not know several of the conspirators; he had a legitimate, thriving
business; he had a drug problem; he had sold his logging business
to pay the forfeiture judgment (saving the Government the time and
expense of collection); he had paid the forfeiture judgment for the
entire conspiracy; and due to his age (sixty-two years old). The
court rejected Viar’s contentions, however, and sentenced him to
188 months in prison. In so doing, the court observed that it had
considered all the factors “it was supposed to consider,” including
the fact that Viar had not fully accepted responsibility. J.A.
12
516. Viar filed a timely notice of appeal, and we possess
jurisdiction pursuant to 28 U.S.C. § 1291.
II.
We review de novo a district court’s denial of a motion for
judgment of acquittal. See United States v. Ryan-Webster, 353 F.3d
353, 359 (4th Cir. 2003). We are obliged to sustain a guilty
verdict that, viewing the evidence in the light most favorable to
the prosecution, is supported by “‘substantial evidence.’” United
States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc)
(quoting Glasser v. United States, 315 U.S. 60, 80 (1942)). We
have defined “substantial evidence” as “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.The Supreme Court has recognized that the “courts of appeals
must review all sentences — [including those] inside . . . the
Guidelines range — under a deferential abuse-of-discretion
standard.” Gall v. United States, 128 S. Ct. 586, 589-90 (2007);
see also United States v. Osborne, 514 F.3d 377, 387 (4th Cir.
2008). “[A]ppellate review of sentencing decisions is limited to
determining whether they are reasonable.” Gall, 128 S. Ct. at 590(internal quotation marks omitted). If the sentence imposed by a
13
district court falls within the correctly calculated Guidelines
range, we are entitled, on appellate review, to apply a presumption
of reasonableness. See Rita v. United States, 127 S. Ct. 2456,
2462 (2007); United States v. Go, 517 F.3d 216, 218 (4th Cir.
2008).
III.
With respect to his convictions, Viar challenges the
sufficiency of the evidence to sustain the verdict on the Count One
conspiracy offense as well as the Count Two substantive offense.
We assess in turn whether Viar was entitled to judgment of
acquittal on either of these charges.
A.
Viar first contends on appeal — as he did in the district
court — that there was insufficient evidence to convict him of
Count One. More specifically, he contends that the court erred in
denying his motion for judgment of acquittal on Count One because
the prosecution’s evidence “fail[ed] to prove that [he] was a
member of the conspiracy involving the California suppliers and
certain distributors in Virginia.” Br. of Appellant 14. Viar
asserts that the evidence established, at best, that he conspired
with individuals in Virginia who were not connected to the
conspiracy alleged in Count One.
14
In order to prove that Viar was a conspirator in Count One, in
violation of § 846 of Title 21, the prosecution was obliged to
prove — as the jury was instructed — (1) that there was an
agreement between two or more persons to engage in conduct that
violated a federal drug law; (2) that Viar had knowledge of the
conspiracy; and (3) that he knowingly and voluntarily became part
of the conspiracy. Under the applicable principles, a criminal
conspiracy — a partnership in crime in which each member of the
conspiracy becomes the agent of every other member — can be proven
by either direct or circumstantial evidence, or both. See United
States v. Brown, 856 F.2d 710, 711 (4th Cir. 1988). And, it is
well-settled that “[o]nce a conspiracy has been proved, the
evidence need only establish a slight connection between any given
defendant and the conspiracy to support conviction.” United States
v. Strickland, 245 F.3d 368, 385 (4th Cir. 2001). In fact, it is
settled that a conspirator need not have knowledge of all of his
coconspirators, or the details of the conspiracy, and he may be
convicted of conspiracy upon having played only a minor role. See
id. (relying on United States v. Burgos, 94 F.3d 849, 861 (4th Cir.
1996) (en banc)).
Assessing the evidence in the light most favorable to the
Government, it was sufficient for a reasonable factfinder to
conclude that Viar was criminally liable for the conspiracy
alleged. In 2003, Viar distributed approximately 280 to 336 grams
15
of methamphetamine to Davis, who pleaded guilty to the Count One
conspiracy in the First Indictment. And, we have consistently held
that a buyer-seller relationship, “when combined with evidence of
a substantial quantity of drugs . . . ‘[supports] a reasonable
inference that the parties were coconspirators.’” United States v.
Yearwood, 518 F.3d 220, 226 (4th Cir. 2008) (quoting United States
v. Mills, 995 F.2d 480, 485 n.1 (4th Cir. 1993)); see also United
States v. Reid, No. 06-4826, 2008 WL 1734923, at *7 (4th Cir. April
16, 2008); Brown, 856 F.2d at 712 (recognizing that “[a] large
quantity of [drugs] . . . supports an inference or presumption that
appellant knew that he was a part of a venture which extend[ed]
beyond his individual participation” (internal quotation marks
omitted)). Thus, the quantity of drugs Davis purchased from Viar
in 2003 sufficiently supports the inference that Viar and Davis
conspired to distribute methamphetamine.
The trial evidence also showed that Davis was a ringleader of
the Count One conspiracy in the Western District of Virginia. He
purchased methamphetamine from several sources, including Woodcock,
Bingham, and Viar. And, although Davis’s drug sources changed from
time to time, he had several regular customers, including
conspirator Baldwin, who occasionally picked up packages of
methamphetamine for Davis. Davis also maintained an organization
of several conspirators who purchased packages of methamphetamine,
then repackaged and sold the substance in smaller quantities. In
16
fact, Davis admitted involvement with over fifteen kilograms of
methamphetamine.
As the district court recognized, Davis “provided the
necessary link connecting [Viar] to the overall conspiracy.”
Opinion 3. Viar asserts, however, that even though he sold Davis
several ounces of methamphetamine, he (Viar) had nothing to do with
Davis’s other drug sources, and that his conviction on Count One is
thus undermined. Contrary to Viar’s assertions, a conspirator, as
noted above, need not have knowledge of all of his coconspirators,
or the details of the conspiracy, and he may be convicted of
conspiracy upon having played only a minor role. Strickland, 245
F.3d at 385.10 Indeed, we have explained that
it is not necessary to proof of a conspiracy that it have
a discrete, identifiable organizational structure; the
requisite agreement to act in concert need not result in
any such formal structure, indeed frequently, in
contemporary drug conspiracies, [it] contemplates and
results in only a loosely-knit association of members
linked only by their mutual interest in sustaining the
overall enterprise of catering to the . . . consumption
market.
United States v. Banks, 10 F.3d 1044, 1054 (4th Cir. 1993).
Viar and the other conspirators were plainly shown to have the
same goal with respect to the same product in the same area —
10
As the court instructed the jury, “the government need not
prove that an alleged coconspirator know each of the other alleged
members of the conspiracy. Nor need it establish that an alleged
coconspirator was aware of each of the transactions alleged in the
indictment.” Jury Instructions at 7, United States v. Viar, No.
6:03-cr-30073 (W.D. Va. May 12, 2005).
17
distribution of methamphetamine in the Western District of
Virginia. In resolving a single versus separate conspiracy issue,
we have explained that a single conspiracy can exist if the
evidence shows that the conspiracy proven, inter alia, “‘had the
same objective, . . . the same goal, the same nature, the same
geographic spread, the same results, and the same product.’”
United States v. Johnson, 54 F.3d 1150, 1154 (4th Cir. 1995)
(quoting United States v. Crockett, 813 F.2d 1310, 1316-17 (4th
Cir. 1987)). On this issue, the jury was carefully instructed that
[i]n order to sustain its burden of proof on [Count One],
the Government must show that the single conspiracy
alleged in Count One of the indictment existed. Proof of
separate or independent conspiracies is not sufficient.
. . . Even if the evidence in the case shows that a
defendant was a member of some conspiracy, but that this
conspiracy is not the single conspiracy charged in the
indictment, then you must acquit the defendant of this
charge.
Jury Instructions at 6-7, United States v. Viar, No. 6:03-cr-30073
(W.D. Va. May 12, 2005). Significantly, no issue has been made or
preserved on the propriety of this aspect of the instructions. And
the jury, by its verdict, concluded beyond a reasonable doubt that
Viar was guilty of the Count One conspiracy. In assessing the
evidence, we are unable to disagree with the district court’s
conclusion that there was sufficient evidence to support the
conspiracy verdict. We thus reject Viar’s challenge to his Count
One conviction.
18
B.
Viar also asserts that there was insufficient evidence to
convict him of the Count Two offense of possession of
methamphetamine with intent to distribute. In that regard, the
Superseding Indictment alleged that “on or about April 26, 2004, in
the Western Judicial District of Virginia, the defendant, ROGER H.
VIAR, Sr., . . . did knowingly and intentionally possess with
intent to distribute a mixture or substance containing
[methamphetamine].” J.A. 15. In order to prove the Count Two
offense, the prosecution was required to prove that Viar (1)
possessed methamphetamine, (2) had knowledge of this possession,
and (3) intended to distribute it. See Burgos, 94 F.3d at 873.
The evidence in support of Count Two was that, on April 26,
2004, Viar’s pick-up truck was stopped by law officers and, at the
time, he possessed slightly less than an ounce of methamphetamine,
plus $6187 in cash and a check made out to him for $857.31. A
search of his pick-up resulted in the seizure of over $26,000 in
cash from a bag in a rear passenger compartment. Contrary to
Viar’s contentions, his intent to distribute methamphetamine could
readily be inferred by the jury from these events. See United
States v. Collins, 412 F.3d 515, 519 (4th Cir. 2005) (concluding
that jury can infer intent to distribute from factors such as drug
quantity, packaging, concealment, and cash seized); United States
19
v. Bell, 954 F.2d 232, 235 (4th Cir. 1992), overruled on other
grounds by Burgos, 94 F.3d at 860; United States v. Fisher, 912
F.2d 728, 730 (4th Cir. 1990).
Viewed in the light most favorable to the Government, this
evidence was sufficient for a reasonable jury to conclude that Viar
possessed methamphetamine with the intent to distribute. Viar
asserts, however, that he offered “uncontroverted evidence . . . to
refute the government’s circumstantial proof of the intent to
distribute.” Br. of Appellant 18.11 Although Viar presented
alternative explanations for the methamphetamine and cash seized
from him, “[w]e may not weigh the evidence . . . . [That]
function[] [is] reserved for the jury, and ‘if the evidence
supports different, reasonable interpretations, the jury decides
which interpretation to believe.’” United States v. Wilson, 118
F.3d 228, 234 (4th Cir. 1997) (quoting United States v. Singh, 54
F.3d 1182, 1186 (4th Cir. 1995)). In sum, because a reasonable
factfinder could conclude that Viar possessed methamphetamine with
the intent to distribute, we also affirm his conviction on Count
Two.
11
In support of this contention, Viar relies on the testimony
of his wife, Ruby, plus Preas and Woodcock. Ruby Viar testified
that her husband won $18,000 in Atlantic City the weekend before he
was pulled over, and that he routinely carried a few thousand
dollars with him for business purposes. Preas testified that Viar
was a methamphetamine user, and Woodcock testified that a heavy
user of methamphetamine could use two to two-and-one-half ounces in
a month.
20
IV.
In challenging his sentence, Viar contends that the district
court erred in adopting the drug calculation recommended by the PSR
and in denying him an adjustment to his offense level based on his
acceptance of responsibility. He also maintains that his sentence
was unreasonable. We assess these contentions in turn.
A.
First, Viar contends that the district court erroneously
calculated the drug quantity attributable to him for sentencing
purposes. A trial court’s determination of drug quantity is a
factual finding that we review for clear error. See United States
v. Randall, 171 F.3d 195, 210 (4th Cir. 1999). For sentencing
purposes, the Government is required to prove drug quantity by a
preponderance of the evidence. Id. As a general proposition, a
conspirator is liable for “all reasonably foreseeable acts” of his
coconspirators that were carried out in furtherance of the
conspiracy. See USSG § 1B1.3(a)(1)(B) (2004).
Before returning its Special Verdict on the forfeiture issue,
the jury was instructed to hold Viar responsible only for the
amount that was reasonably foreseeable to him. The forfeiture
verdict found the underlying conspiracy to involve $500,000 in
gross proceeds, resulting from violations of 21 U.S.C. §§ 846 and
841(a)(1), and also found that drug quantity to be reasonably
21
foreseeable to Viar. Relying thereon, the PSR concluded that 11.8
kilograms of methamphetamine were attributable to Viar for
sentencing purposes — premised on the conversion of the $500,000
forfeiture finding to a corresponding quantity of methamphetamine.12
We have recognized that a sentencing court is entitled to
utilize the “drug equivalent” of drug-related cash in calculating
drug quantity for sentencing purposes. See United States v. Hicks,
948 F.2d 877, 883 (4th Cir. 1991). Although the quantity
calculation made in the PSR was an estimate, “[a] district court’s
finding . . . is not erroneous if it is based on evidence
possessing sufficient indicia of reliability to support its
probable accuracy.” United States v. Uwaeme, 975 F.2d 1016, 1021
(4th Cir. 1992). In the absence of an affirmative showing that the
facts related in the PSR are incorrect, the sentencing court is
entitled to adopt its findings. See United States v. Terry, 916
F.2d 157, 162 (4th Cir. 1990). As a result, the district court did
not clearly err in attributing 11.8 kilograms of methamphetamine to
Viar for sentencing purposes.13
12
The PSR used $1200 as an estimated price for an ounce of
methamphetamine because it was an average of the prices given by
Viar and the various trial witnesses.
13
Viar makes several assertions that appear to challenge the
sufficiency of the evidence relating to the $500,000 special
verdict on forfeiture, but couches them in his contentions
regarding drug quantity. Because Viar does not specify that he is
challenging the sufficiency of the evidence supporting the special
verdict, we need not further address the propriety of the
forfeiture award.
22
B.
Next, Viar contends that the district court erred in failing
to grant his request for an acceptance of responsibility
adjustment. Viar asserts, in support of this proposition, that he
had admitted his culpability prior to trial and only put the
prosecution to its proof because of a disagreement with the
prosecution on drug quantity. The court decided, however, that
Viar was not entitled to such an adjustment, because he had not
admitted the extent of the drug activity for which he was found
culpable by the jury. We review a district court’s decision to
deny an adjustment for acceptance of responsibility for clear
error. See United States v. Ruhe, 191 F.3d 376, 388 (4th Cir.
1999).
In order to receive an adjustment for acceptance of
responsibility, a defendant must, pursuant to section 3E1.1 of the
Guidelines, “prove by a preponderance of the evidence that he has
clearly recognized and affirmatively accepted personal
responsibility for his criminal conduct.” United States v. May,
359 F.3d 683, 693 (4th Cir. 2004) (citing United States v. Nale,
101 F.3d 1000, 1005 (4th Cir. 1996)). As a general proposition, an
adjustment for acceptance of responsibility “is not intended to
apply to a defendant who puts the government to its burden of proof
at trial.” USSG § 3E1.1 cmt. n.2 (2004). Nevertheless, a
23
defendant is entitled to go to trial and yet, in certain
circumstances, still receive such an adjustment. For example, an
adjustment might be warranted if a defendant proceeded to trial “to
assert and preserve issues that do not relate to factual guilt.”
Id. It is well-settled, however, that “a defendant who falsely
denies, or frivolously contests, relevant conduct that the court
determines to be true has acted in a manner inconsistent with
acceptance of responsibility.” Id. § 3E1.1 cmt. n.1(a).
This record reveals that, although Viar acknowledged being a
drug distributor and being personally involved with 538 grams of
methamphetamine, he did not accept responsibility before trial for
the quantity attributable to him. The evidence established, as the
district court recognized, that Viar was personally involved in
well over 538 grams of methamphetamine. Thus, Viar did not accept
responsibility for the conduct the jury attributed to him, and
continued to deny the extent of his involvement. As a result, the
district court did not err in finding that Viar had failed to
accept responsibility for his criminal conduct and in denying him
the adjustment sought.
C.
Finally, Viar argues that his sentence was unreasonable
because it did not account for the fact that: (1) he had a
successful business that employed several individuals and supported
24
his family; (2) he had sold his business to pay the forfeiture
judgment; (3) he was elderly; and (4) he was a heavy drug user.
Viar was sentenced to 188 months, at the bottom of his advisory
Guidelines range. Although Viar argues that a variance sentence
below the Guidelines range would adequately have taken these facts
into account, the sentence imposed was nevertheless reasonable.14
Viar’s advisory Guidelines range was correctly calculated, the
court considered the relevant sentencing factors, and it chose to
sentence Viar at the low end of his advisory range. There is no
abuse of discretion apparent in this regard, and we are thus
obliged to affirm Viar’s sentence.
V.
Pursuant to the foregoing, we reject Viar’s appellate
contentions and affirm his convictions and sentence.
AFFIRMED
14
Although Viar asserts that the court erred in failing to
grant a “downward departure from the advisory guidelines,” Br. of
Appellant at 22, he is actually arguing that the court erred in
failing to impose a variance sentence. See United States v.
Hampton, 441 F.3d 284, 288 n.2 (4th Cir. 2006) (noting that
district court “utilized the language of ‘departure’ rather than
what has more recently become known as a ‘variance,’” and
explaining difference).
25