United States v. Poole , 241 F. App'x 153 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-5049
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CONRAD DOMINIC POOLE,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Malcolm J. Howard, Senior
District Judge. (5:05-cr-16-1-H)
Submitted: April 18, 2007 Decided: July 30, 2007
Before MOTZ and DUNCAN, Circuit Judges, and Gerald Bruce LEE,
United States District Judge for the Eastern District of Virginia,
sitting by designation.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Devon L. Donahue,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. 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Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Conrad Dominic Poole pled guilty to possession of a
firearm by a convicted felon, in violation of 18 U.S.C.A.
§§ 922(g)(1), 924 (West 2000 & Supp. 2006). He was sentenced to 72
months of imprisonment. Poole appeals his sentence, asserting that
the district court erred by admitting into evidence victim impact
statements, which unduly prejudiced his sentence. Finding no
reversible error, we affirm.
On September 17, 2004, Poole was a passenger in a vehicle
driven by his cousin when it was stopped by Raleigh, North Carolina
Police Officers Kaplan and Little in relation to a domestic
violence complaint against Poole’s cousin. After the officers
determined that there was an outstanding warrant against Poole,
they attempted to take Poole into custody. Poole became
belligerent and attempted to flee. During the ensuing struggle,
Poole attempted to take Officer Little’s firearm, but Officer
Little was able to secure the weapon in her holster. Poole,
however, successfully removed Officer Kaplan’s gun from its
holster. He struck Officer Kaplan on the head with the gun,
causing her to sustain a deep, bleeding laceration. Officer Little
then drew her weapon and ordered Poole to drop the gun. After
Poole failed to drop the gun, Officer Little fired two shots in
Poole’s direction, not striking him, but causing him to drop the
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gun. While Poole continued to struggle, the officers were able to
lower him to the ground, handcuff him, and take him into custody.
At sentencing, the district court determined Officer
Kaplan “ha[d] a right under the criminal rules . . . as a victim”
to make a statement to the court concerning the effect of Poole’s
actions on her. The district court allowed Officer Kaplan to read
her statement into the record. The court also accepted photographs
of Officer Kaplan’s injuries and a letter from Officer Little
concerning the events leading to arrest and commenting on
sentencing. Poole did not object to Kaplan’s statement or Little’s
letter at sentencing. The district court sentenced Poole to 72
months of imprisonment, within the 63 to 78 month advisory
Guidelines range.
On appeal, Poole contends that the district court
violated the Crime Victims’ Rights Act (“CVRA”), 18 U.S.C.A. § 3771(West Supp. 2006), by allowing the officers’ victim statements at
sentencing because his offense was a victimless crime. He further
argues that his due process rights were violated because the
statements were unduly prejudicial, rendering his sentence unfair.
Because Poole did not object to the admission of the victim impact
statements at sentencing, we review for plain error. United
States v. Olano, 507 U.S. 725, 731-37 (1993). Under plain error
review, we may only notice an error that was not preserved by
timely objection if the defendant can demonstrate: (1) that an
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error occurred, (2) that the error was plain, and (3) that the
error was material or affected the defendant’s substantial rights.
Id. at 732-37. Even when these three conditions are satisfied, the
court will only correct the error if it seriously affects the
fairness, integrity, or public reputation of judicial proceedings.
Id. at 736-37.
The CVRA guarantees crime victims “[t]he right to be
reasonably heard at any public proceeding in the district court
involving release, plea, sentencing, or any parole proceeding.” 18
U.S.C.A. § 3771(a)(4). The CVRA defines “crime victim” as “a
person directly and proximately harmed as a result of the
commission of a Federal offense.” 18 U.S.C.A. § 3771(e). The CVRA
does not limit the information a sentencing court may consider at
sentencing. Further, the CVRA provides that “[a] person accused of
the crime may not obtain any form of relief under this chapter.”
18 U.S.C.A. § 3771(d)(1). Poole contends that the district court
erred in permitting Officers Kaplan and Little to testify as
victims, because they were not victims of the charged offense --
being a felon in possession of a firearm.
Even assuming that the district court erred in admitting the
victim evidence at sentencing, and that error was plain, it did not
affect Poole’s substantial rights. The evidence was not so unduly
prejudicial as to render Poole’s sentence unfair; contrary to
Poole’s contentions, it did not so “inflame the emotions of the
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sentencing court” that the court sentenced Poole to the top of the
Guidelines range or above the Guidelines range. Rather, the court
imposed a 72-month sentence, which is in the middle of the advisory
Guidelines range and below the 78-month top of the Guidelines
sentence requested by the Government and Officers Kaplan and
Little. Moreover, the victim statements of Officers Kaplan and
Little were largely cumulative of evidence not subject to
challenge. Much of the information related by Officers Kaplan and
Little concerning the events leading up to Poole’s arrest, while
not as detailed as their statements, was contained in the
presentence report and thus was already before the court and not
prejudicial. Therefore, any error by the district court in
admitting the victim statements did not affect Poole’s substantial
rights.
Accordingly, finding no plain error, 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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