United States v. Mercer , 242 F. App'x 932 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4887
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JERRY LEE MERCER,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (5:05-cr-00305-BR)
Submitted: May 30, 2007 Decided: July 6, 2007
Before MOTZ, TRAXLER, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Jeffrey M. Brandt, Cincinnati, Ohio, for Appellant. George E. B.
Holding, 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Unpublished opinions are not binding precedent in this circuit.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:
A jury convicted Mercer of one count of possession with
intent to distribute more than five grams of cocaine base in
violation of 21 U.S.C. 841 (a)(1) (2000). The court sentenced
Mercer to 360 months’ imprisonment. On appeal, Mercer raises the
following issues: whether the district court erred in denying his
motion to suppress evidence gathered after a protective sweep;
whether there was sufficient evidence supporting the possession
with intent to distribute charge; whether the district court erred
by enhancing Mercer’s sentence based upon his prior convictions;
whether the district court erred by punishing Mercer based on
acquitted conduct; whether this Court may constitutionally presume
that a sentence within the correctly calculated guidelines range is
reasonable; and whether the sentence is reasonable. After
thoroughly reviewing the record, we affirm.
First, Mercer argues the officer’s search of his
residence was for evidence, not a protective sweep. In considering
the district court’s denial of a motion to suppress, this Court
reviews 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). Under Maryland v. Buie, 494 U.S.
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325, 327 (1990), police may conduct a limited search of the areas
immediately adjoining the place of an arrest where a person may be
found in order to assure the safety of police and others. Id. at
335. We conclude that the district court properly found that
officers acted reasonably by checking the bedroom to see if a
person or weapon was in the bedroom after Mercer had suddenly moved
into that room.
Next, Mercer argues the evidence does not demonstrate
that Mercer had possession of the crack cocaine and the Government
did not prove intent to distribute. To determine if there was
sufficient evidence to support a conviction, this court considers
whether, taking the evidence in the light most favorable to the
government, substantial evidence supports the jury’s verdict.
Glasser v. United States, 315 U.S. 60, 80 (1942). This court
reviews both direct and circumstantial evidence, and permits the
“government the benefit of all reasonable inferences from the facts
proven to those sought to be established.” United States v.
Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982).
To prove possession with intent to distribute a
controlled substance, the government must establish that a
defendant: (1) knowingly; (2) possessed the control substance; and
(3) intended to distribute the controlled substance. United States
v. Collins, 412 F.3d 515, 519 (4th Cir. 2005). Possession may be
proven by direct or circumstantial evidence. United States v.
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Burgos, 94 F.3d 849, 873 (4th Cir. 1996) (en banc). Intent to
distribute may be inferred from a defendant’s possession of
quantities too large for personal consumption. Burgos, 94 F.3d at
873.
A police officer testified he saw a baggie containing
crack cocaine on the floor of a bedroom immediately after Mercer
exited the room. Mercer’s mother, who regularly slept in that
bedroom, testified the crack cocaine was not hers. We conclude the
jury reasonably inferred that Mercer possessed the baggie of crack
cocaine and tried to dispose of it in the bedroom. In addition, a
Government witness testified that the amount of crack cocaine found
in the baggie was consistent with distribution. We conclude that
substantial evidence supports the jury’s finding that the amount
found was consistent with the intent to distribute.
Third, Mercer argues that the district court improperly
considered prior convictions to determine his criminal history
category. We find the argument is without merit. Almendarez-
Torres v. United States, 523 U.S. 224, 233-36, 243-44 (1998);
United States v. Cheek, 415 F.3d 349, 351-54 (4th Cir.)
(reaffirming continuing validity of Almendarez-Torres after United
States v. Booker, 543 U.S. 220 (2005), cert. denied, 126 S. Ct. 640(2005).
Fourth, Mercer argues the district court violated his
Fifth and Sixth Amendment right to due process and trial by jury,
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respectively, by punishing him based on acquitted conduct. Mercer
complains he was held responsible for drug quantities beyond the
amount for which he was found guilty of possessing with intent to
distribute. It is well-established that a district court’s
consideration of acquitted conduct in calculating a sentence does
not run afoul of constitutional constraints. E.g., United States
v. Watts, 519 U.S. 148, 155-57 (1997); United States v. Romulus,
949 F.2d 713, 716-17 (4th Cir. 1991). This rule survives United
States v. Booker, 543 U.S. 220 (2005). United States v. Williams,
299 F.3d 450, 454 (2d Cir. 2005). Further, Mercer was not
prejudiced because his base offense level was determined by his
career offender status, not the amount of drugs for which he was
held responsible. We find that Mercer is not entitled to relief.
Fifth, Mercer contends that the presumption of
reasonableness this court affords post-Booker sentences imposed
within a properly calculated Guidelines range is unconstitutional.
Our precedent, however, forecloses this argument. See, e.g.,
United States v. Montes-Pineda, 445 F.3d 375, 379 (4th Cir. 2006),
petition for cert. filed, __ U.S.L.W. __ (U.S. July 21, 2006) (No.
06-5439); United States v. Johnson, 445 F.3d 339, 341-42 (4th Cir.
2006); United States v. Moreland, 437 F.3d 424, 433 (4th Cir.),
cert. denied, 126 S. Ct. 2054 (2006); United States v. Green, 436
F.3d 449, 457 (4th Cir.), cert. denied, 126 S. Ct. 2309 (2006). As
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one panel of this court cannot overrule another, Mercer’s argument
must fail.
Finally, Mercer contends his 360-month sentence is
unreasonable because consideration of acquitted conduct caused his
criminal history to be overstated, and because the length of his
sentence is disproportionate to the crime for which he was
convicted. We review the imposition of a sentence for
reasonableness. Booker, 543 U.S. at 260-61; United States v.
Hughes, 401 F.3d 540, 546-47 (4th Cir. 2005). After Booker, courts
must calculate the appropriate guideline range, making any
appropriate factual findings. United States v. Davenport, 445 F.3d
366, 370 (4th Cir. 2006). The court then should consider the
resulting advisory guideline range in conjunction with the factors
under 18 U.S.C.A. § 3553(a), and determine an appropriate
sentence.
Here the court sentenced at the bottom of the applicable
sentencing guidelines’ range. We conclude Mercer is unable to
rebut the presumption of reasonableness due to his extensive
criminal history and find the sentence is reasonable.
Accordingly, we affirm the judgment of the district
court. 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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