United States v. Morrison , 364 F. App'x 33 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4266
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
BRYAN KENDALL MORRISON, a/k/a Drake,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Abingdon. James P. Jones, Chief
District Judge. (1:08-cr-00024-jpj-pms-15)
Submitted: December 29, 2009 Decided: February 5, 2010
Before MOTZ, DUNCAN, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Charles Y. Sipe, GOODMAN, WEST & FILETTI, PLLC, Charlottesville,
Virginia, for Appellant. Julia C. Dudley, United States
Attorney, Jennifer R. Bockhorst, Assistant United States
Attorney, Abingdon, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Bryan Kendall Morrison was found guilty by a jury of
one count of conspiracy to distribute and possess with the
intent to distribute fifty grams or more of cocaine base and
five hundred grams or more of cocaine, in violation of 21 U.S.C.
§ 841(a)(1) (2006) and 21 U.S.C. § 846 (2006). Prior to trial,
the Government filed a Sentencing Enhancement Information,
charging that Morrison had four prior convictions for felony
drug offenses that had become final prior to the offense charged
in the indictment, and notifying Morrison that upon conviction
for the offense in the indictment he would be sentenced to a
mandatory term of life imprisonment. At sentencing, the
district court denied Morrison’s objection to his presentence
report (“PSR”), and sentenced him to life imprisonment pursuant
to 21 U.S.C. § 841(b)(1)(A) (2006). On appeal, Morrison
contends that: (1) the district court erred in sentencing him to
life in prison; (2) the evidence was insufficient to sustain his
conviction; and (3) the district court erred in admitting
evidence of his prior felony drug convictions pursuant to
Federal Rule of Evidence 404(b). For the reasons that follow,
we affirm.
Morrison first asserts that he should not have been
sentenced to life in prison. Morrison argues that “to count as
a prior conviction [under § 841(b)], a career offender felony
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predicate must also score criminal history points under [U.S.
Sentencing Guidelines Manual] § 4A1.2,” and cites to this
court’s decision in United States v. Mason, 284 F.3d 555(4th Cir. 2002), for support. Under this analysis, Morrison
claims that the first conviction relied upon by the Government
cannot count as a predicate conviction because he was a minor at
the time of conviction, and that his second and third
convictions should count as only one qualifying conviction.
Because the district court concluded that Morrison’s fourth
prior conviction could not be counted for the purposes of the
statutory mandatory minimum under § 841, Morrison’s argument, if
accepted, would leave only one conviction to count as a
predicate offense.
Under 21 U.S.C. § 841(b)(1)(A), “[i]f any person
commits a violation of this subparagraph . . . after two or more
prior convictions for a felony drug offense have become final,
such person shall be sentenced to a mandatory term of life
imprisonment without release and fined in accordance with the
preceding sentence.” Whether a district court properly
interpreted the term “felony drug offense” in § 841(b)(1)(A)
“involves a pure question of law,” which this court reviews de
novo. United States v. Burgess, 478 F.3d 658, 661 (4th Cir.
2007), aff’d, 553 U.S. 124 (2008).
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Section 841 does not define the term “felony drug
offense,” but 21 U.S.C. § 802(44) (2006) does, “in plain and
unambiguous terms.” Burgess, 478 F.3d at 662. Section 802(44)
defines a felony drug offense as “an offense that is punishable
by imprisonment for more than one year under any law of the
United States or of a State or foreign country that prohibits or
restricts conduct relating to narcotic drugs, marihuana,
anabolic steroids, or depressant or stimulant substances.”
21 U.S.C. § 802(44). As we have previously held, “because the
term ‘felony drug offense’ is specifically defined in § 802(44),
and § 841(b)(1)(A) makes use of that precise term, the logical,
commonsense way to interpret ‘felony drug offense’ in
§ 841(b)(1)(A) is by reference to the definition in § 802(44).”
Burgess, 478 F.3d at 662 (internal quotation marks and
alternations omitted).
Despite Morrison’s assertions, this court’s holding in
Mason and the requirements of the U.S. Sentencing Guidelines
Manual for designation as a career offender pursuant to § 4B1.1
are inapposite to his sentence. Rather, the district court made
clear at the sentencing hearing that Morrison was being
sentenced under the mandatory minimum sentence provision
contained within § 841(b) for defendants with two or more prior
felony drug convictions.
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The district court relied on three convictions in the
Superior Court of Alamance County, North Carolina in sentencing
Morrison: (1) an April 26, 2000 conviction for possession with
the intent to sell or deliver marijuana, in violation of N.C.
Gen. Stat. § 90-95(a) (2007), manufacturing marijuana, in
violation of N.C. Gen. Stat. § 90-95(a)(1), and felony
possession of cocaine, in violation of N.C. Gen. Stat. § 90-
95(d)(2) (2007); (2) a May 30, 2003 conviction for conspiracy to
sell cocaine, in violation of N.C. Gen. Stat. § 90-98 (2007),
with an offense date of September 6, 2002; and (3) a
May 30, 2003 conviction for conspiracy to sell cocaine, in
violation of N.C. Gen. Stat. § 90-98, with an offense date of
September 24, 2002. Morrison did not dispute these convictions.
All three of Morrison’s convictions qualify as prior
felony drug offenses under § 802(44). First, although two of
the convictions occurred on the same day, because they resulted
from two separate “episodes of criminality,” they constitute two
separate convictions for the purpose of sentencing under
§ 841(b)(1)(a). United States v. Ford, 88 F.3d 1350, 1366 (4th
Cir. 1996). Second, all three convictions were under the laws
of North Carolina that prohibit “conduct relating to narcotic
drugs, marihuana, anabolic steroids, or depressant or stimulant
substances.” 21 U.S.C. § 802(44). Finally, although Morrison
himself was not sentenced to a term of imprisonment for more
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than one year, all of the convictions were punishable by
imprisonment for more than one year. See N.C. Gen. Stat.
§ 15A-1340.17(c), (d) (2007); United States v. Harp, 406 F.3d
242, 246 (4th Cir. 2005) (explaining that, for the purpose of
determining “whether a conviction is for a crime punishable by a
prison term exceeding one year,” a court must consider “the
maximum aggravated sentence that could be imposed for that crime
upon a defendant with the worst possible criminal history”). As
a result, Morrison had a sufficient number of prior felony drug
offenses to qualify him for the statutorily prescribed mandatory
minimum, and the district court did not err in sentencing
Morrison to life imprisonment.
Morrison also argues that the evidence was
insufficient to sustain his conviction of conspiracy to
distribute and to possess with intent to distribute cocaine base
and cocaine. In reviewing a challenge to the sufficiency of the
evidence, we review the evidence in the light most favorable to
the Government, and ask whether “‘any rational trier of facts
could have found the defendant guilty beyond a reasonable
doubt.’” United States v. Harvey, 532 F.3d 326, 333 (4th Cir.
2008) (quoting United States v. Tresvant, 677 F.2d 1018, 1021
(4th Cir. 1982)). This court considers both direct and
circumstantial evidence, and “allow[s] the [G]overnment all
reasonable inferences that could be drawn in its favor.” Id.6
Conflicts in testimony are weighed by the jury, and this court
will not weigh the evidence or judge the credibility of the
witnesses. Id.To prove conspiracy to distribute and to possess with
intent to distribute a controlled substance, the Government must
have established “beyond a reasonable doubt that: ‘(1) an
agreement’ to distribute and ‘possess cocaine with intent to
distribute existed between two or more persons; (2) the
defendant knew of the conspiracy; and (3) the defendant
knowingly and voluntarily became a part of this conspiracy.’”
United States v. Yearwood, 518 F.3d 220, 225-26 (4th Cir.)
(quoting United States v. Burgos, 94 F.3d 849, 857 (4th Cir.
1996) (en banc)), cert. denied, 129 S. Ct. 137 (2008).
Nonetheless, because a conspiracy is, “by its very nature . . .
clandestine and covert,” proving its existence is often done
through circumstantial evidence “and the context in which the
circumstantial evidence is adduced.” Burgos, 94 F.3d at 857.
Accordingly, the Government “need not prove that the defendant
knew the particulars of the conspiracy or all of his
coconspirators” or that his connection to the conspiracy was
anything more than “slight.” Id. at 858, 861. The
“[c]ircumstantial evidence sufficient to support a conspiracy
conviction need not exclude every reasonable hypothesis of
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innocence, provided the summation of the evidence permits a
conclusion of guilt beyond a reasonable doubt.” Id. at 858.
With these standards in mind, the evidence presented
at trial established that during the time in question, Morrison
and numerous other individuals were involved in selling cocaine
in Bristol, Virginia. Derrick Evans, a co-conspirator,
testified that he, Kerry Lee, and Oedipus Mumphrey came to
Bristol in 2006 and began selling cocaine there, explaining that
Lee and Mumphrey would make trips to various locations to obtain
large quantities of cocaine, and then return to Bristol where
they provided Evans with cocaine to sell and sold cocaine on
their own. Mumphrey confirmed Evans’s account of the activities
of the three men, stating that the purpose of coming to Bristol
was to sell cocaine. Mumphrey testified that Morrison and five
other individuals came with him in 2006 to Bristol to help sell
the cocaine faster. He detailed the structure of the
conspiracy, explaining that the cocaine was purchased, cooked up
in hotel rooms by those assisting him, and then distributed to
two individuals who were responsible for distributing the drugs
to the sellers, including Morrison. Mumphrey unequivocally
stated that Morrison “sold a couple of ounces” for him, and that
after he did not properly return money from the drug sales,
Morrison dealt with Mumphrey directly for the purposes of the
sales.
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Other co-conspirators, including Candace Maynard,
Jessica Rodriquez, and Emmanuel Morton, all testified that
Morrison came to Bristol to sell cocaine with other members of
the conspiracy and was present in the hotel rooms where the
conspirators gathered to sell and obtain the drugs. Morton
testified that he witnessed Mumphrey give cocaine to Morrison.
Construing the testimony in the light most favorable to the
Government, and allowing the Government all reasonable
inferences that could be drawn in its favor, the evidence showed
that Morrison was involved in an agreement between two or more
persons to possess with intent to distribute cocaine, that he
was aware of the conspiracy, and that he knowingly and
voluntarily became a part of it. Accordingly, the evidence was
sufficient to support the jury’s verdict.
Lastly, Morrison argues that the district court erred
when it permitted the jury to hear evidence of his prior felony
drug convictions, asserting that this evidence was unfairly
prejudicial. Under Rule 404(b) of the Federal Rules of
Evidence, “[e]vidence of other crimes, wrongs, or acts is not
admissible” if that evidence is used to prove the character of
the defendant “in order to show action in conformity therewith.”
However, such evidence is admissible for other purposes, “such
as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.” Fed.
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R. Evid. 404(b). As it “is understood to be a rule of
inclusion,” the list provided in Rule 404(b) is not exhaustive.
United States v. Queen, 132 F.3d 991, 994-95 (4th Cir. 1997).
Evidence under Rule 404(b) is admissible if four conditions are
satisfied:
First, “the evidence must be relevant to an issue,
such as an element of an offense, and must not be
offered to establish the general character of the
defendant. In this regard, the more similar the prior
act is (in terms of physical similarity or mental
state) to the act being proved, the more relevant it
becomes.” Second, “the act must be necessary in the
sense that it is probative of an essential claim or an
element of the offense.” Third, “the evidence must be
reliable.” Finally, “the evidence’s probative value
must not be substantially outweighed by confusion or
unfair prejudice in the sense that it tends to
subordinate reason to emotion in the factfinding
process.”
United States v. Gray, 405 F.3d 227, 239 (4th Cir. 2005)
(quoting Queen, 132 F.3d at 997) (citations and alterations
omitted). Whether a district court properly admitted evidence
under Rule 404(b) is an evidentiary ruling that is reviewed for
abuse of discretion. Id. at 238.
All four conditions are satisfied here. First, the
evidence was not admitted for the purpose of establishing
Morrison’s character. Morrison was charged with conspiracy to
distribute and to possess with intent to distribute cocaine.
The prior convictions that the Government sought to introduce
were delivering and sale of cocaine, possession with intent to
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sell and deliver cocaine, maintaining a vehicle or dwelling or
place to sell cocaine, and possession of drug paraphernalia,
which the Government argued demonstrated Morrison’s knowledge,
intent, and absence of mistake with regard to the conspiracy
charge. To prove the conspiracy charge against Morrison, the
Government was required to show that Morrison knew of the
conspiracy and knowingly and voluntarily became a part of it.
Morrison’s prior convictions for numerous cocaine-related
offenses, including possession and sale, were relevant and
necessary to demonstrate that he had knowledge of these
activities, he had the intent to engage in the same activities
during the life of the conspiracy, and his engagement in these
activities was not accidental or mistaken. The evidence was
reliable, having been introduced during the testimony of Special
Agent Todd Brewer, who obtained a certified copy of Morrison’s
convictions. Finally, the probative value of the evidence was
not substantially outweighed by confusion or unfair prejudice.
Although this information was damaging to Morrison, it was not
unfairly prejudicial, nor did it “subordinate reason to emotion
in the factfinding process.” Gray, 405 F.3d at 239. No
additional details were provided regarding Morrison’s
convictions that could have inflamed the jury’s emotions.
Despite Morrison’s claims that there was a paucity of physical
evidence against him, the testimony of his co-conspirators was
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sufficient to demonstrate his active involvement in the
conspiracy, such that the prior conviction evidence cannot be
said to be responsible for his conviction. Thus, the district
court did not abuse its discretion in admitting the evidence
regarding Morrison’s prior convictions under Rule 404(b).
Accordingly, we affirm the district court’s judgment.
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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