United States v. Burston , 195 F. App'x 150 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4684
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CURTIS BURSTON, JR.,
Defendant - Appellant.
No. 05-4692
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MUHAMMED MAHDEE ABDULLAH,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (CR-04-371)
Submitted: July 24, 2006 Decided: August 22, 2006
Before MICHAEL, MOTZ, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Devon L. Donahue,
Assistant Federal Public Defender, Raleigh, North Carolina; H.
Gerald Beaver, Fayetteville, North Carolina, for Appellants. Frank
D. Whitney, United States Attorney, Anne M. Hayes, Christine
Witcover Dean, Assistant United States Attorneys, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
- 2 -
PER CURIAM:
In these consolidated appeals, Curtis Burston, Jr., and
Muhammed Mahdee Abdullah appeal their convictions and sentences.
After a jury trial, both Appellants were found guilty of conspiracy
to distribute and possess with intent to distribute more than 50
grams of cocaine base and 500 grams of cocaine, in violation of 21
U.S.C. § 846 (2000), and one count of distribution of a quantity of
cocaine, in violation of 21 U.S.C. § 841(a)(1)(2000). Burston was
also convicted of one count of unlawful use of a communication
device, in violation of 21 U.S.C. § 843(b)(2000). Finding no
reversible error, we affirm.
Both Appellants claim the district court erred in denying
the motion to suppress evidence seized pursuant to a search warrant
after the police conducted a protective sweep of the residence. In
considering the district court’s denial of a motion to suppress, we
review legal conclusions de novo, while reviewing factual findings
for clear error. Ornelas v. United States, 517 U.S. 690, 699
(1996); United States v. Rusher, 966 F.2d 868, 873 (4th Cir. 1992).
Evidence is viewed in the light most favorable to the party who
prevailed in the district court. See United States v. Seidman, 156
F.3d 542, 547 (4th Cir. 1998). We find the district court did not
err in finding there was sufficient evidence for a reasonably
prudent officer to believe the area to be swept harbors an
- 3 -
individual posing a danger to those on the arrest scene. Maryland
v. Buie, 494 U.S. 325, 334 (1990).
Abdullah claims the evidence was insufficient to show he
conspired with Burston to possess and distribute cocaine base or
crack cocaine. The Government concedes this issue but notes
Abdullah does not challenge the jury finding that he was
responsible for 500 grams of cocaine powder. As a result of that
finding and because Abdullah was subjected to an increased
statutory sentence because of a prior felony drug conviction, his
maximum statutory sentence is still life imprisonment.
Accordingly, any error was harmless.
Abdullah also claims the district court erred because he
was found to be a career offender. Abdullah claims the error lies
in the fact that the two predicate convictions were consolidated at
sentencing and only one judgment was entered. Prior sentences
imposed in related cases are to be treated as one sentence for
purposes of U.S. Sentencing Guidelines Manual § 4B1.1 (2004). See
USSG §§ 4A1.2, comment. (n.3); 4B1.2, comment. (n.3).
Nevertheless, prior sentences are not considered related if they
were for offenses that were separated by an intervening arrest.
USSG § 4A1.2, comment. (n.3).
According to the Presentence Investigation Report
(“PSR”), Abdullah was arrested on January 12, 1993, for felony
possession with intent to sell and deliver cocaine. On April 10,
- 4 -
1993, Abdullah attempted to kill another by firing a pistol. He
was charged with felony assault with a deadly weapon. In a
consolidated proceeding, Abdullah pled guilty to both charges and
was sentenced to five years’ imprisonment. At sentencing, Abdullah
did not object to the facts concerning the prior convictions. He
did not challenge the finding that the convictions were separated
by an intervening arrest. Because Abdullah did not make an
affirmative showing as to why the facts regarding the two
convictions are inaccurate, the court was free to adopt the
findings. United States v. Terry, 916 F.2d 157, 162 (4th Cir.
1990).
Abdullah also claims the district court erred regarding
drug quantity and possession of a firearm. Both findings increased
his offense level. We have reviewed the PSR and the testimony at
sentencing and find no error. United States v. Caplinger, 339 F.3d
226, 235-36 (4th Cir. 2003) (stating standard).
Burston claims the district court erred in attributing a
prior felony conviction in the name of David Brown to him. We find
the court’s decision was not in error. We also find the district
court did not err in sentencing Burston on the basis of crack
cocaine. The trial evidence supported this finding and the court
was not authorized to consider the sentencing disparity between
crack cocaine and cocaine powder. United States v. Eura, 440 F.3d
- 5 -
625, 632-33 (4th Cir. 2006), petition for cert. filed (No. 05-
11659) (June 20, 2006).
Burston claims counsel was ineffective for failing to
challenge the sentence for crack cocaine. Because we find the
issue without merit, counsel was not ineffective. Burston also
challenges counsel’s failure to successfully challenge the use of
David Brown’s prior conviction. Burston can only raise this issue
on appeal if he can show conclusively from the face of the record
counsel provided ineffective representation. United States v.
James, 337 F.3d 387, 391 (4th Cir. 2003). We find the record does
not conclusively demonstrate Burston’s counsel was ineffective.
This claim is better heard in a 28 U.S.C. § 2255 (2000) motion.
Both Appellants filed motions to file pro se supplemental
briefs. While we grant the motions, we find the issues raised in
the briefs are without merit.
Accordingly, we affirm the convictions and sentences. We
also grant the motions to file pro se supplemental briefs. 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
- 6 -