United States v. Sellers , 383 F. App'x 251 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4332
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LARRY SELLERS, a/k/a L,
Defendant - Appellant.
No. 09-4335
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BRANDON PUGH,
Defendant - Appellant.
Appeals from the United States District Court for the Northern
District of West Virginia, at Clarksburg. John Preston Bailey,
Chief District Judge. (1:08-cr-00052-JPB-JSK-1; 1:08-cr-00052-
JPB-JSK-3)
Submitted: April 12, 2010 Decided: June 10, 2010
Before TRAXLER, Chief Judge, and WILKINSON and DUNCAN, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
Pamela R. Folickman, THE LAW OFFICE OF PAMELA R. FOLICKMAN,
PLLC, Fairmont, West Virginia; Joshua P. Sturm, LAW OFFICE OF
JOSHUA P. STURM, Ripley, West Virginia, for Appellants. Betsy
C. Jividen, Acting United States Attorney, John C. Parr,
Assistant United States Attorney, Wheeling, West Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Following a two-day bench trial, the district court
convicted Larry Sellers and Brandon Pugh of conspiracy to
distribute more than five grams of cocaine base, in violation of
21 U.S.C.A. §§ 841(b)(1)(B), 846 (West 1999 & Supp. 2009) (Count
One); and aiding and abetting the possession with intent to
distribute more than five grams of cocaine base, in violation of
21 U.S.C.A. §§ 841(a)(1), (b)(1)(B) (West 1999 & Supp. 2009)
(Count Seven). Sellers was also convicted of maintaining a
drug-involved premises, in violation of 21 U.S.C.A. § 856(a)(2)
(West Supp. 2009) (Count Eight). Sellers received concurrent
sentences of 292 months on Counts One and Seven and 240 months
on Count Eight. Pugh received concurrent sentences of 144
months on Counts One and Seven. Finding no error, we affirm.
On appeal, both Defendants challenge the sufficiency
of the evidence and the reasonableness of their sentences.
Sellers also challenges the district court’s denial of his
motion to depose Ashley Adkins, a co-conspirator who pleaded
guilty and testified for the Government at trial.
The criminal charges center around Sellers’ drug
trafficking in Morgantown, West Virginia. Between February and
May of 2008, Sellers supplied Adkins with crack cocaine on
multiple occasions. Adkins acted as a runner between
individuals she knew who wanted crack cocaine, and her source,
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Sellers. According to Adkins, she would call Sellers for crack
and he would either come to her with the crack or she would hire
a cab or have another crack user drive her to Sellers’ apartment
complex in Morgantown. Adkins would buy between $50 and $200
worth of crack from Sellers, while the taxi driver or customer
waited in a car. During the course of the conspiracy, Adkins
made purchases for herself and several customers.
One of Adkins’ customers was a confidential informant
who made several recorded buys from Adkins. One of those buys
resulted in Adkins’ arrest. On May 8, 2008, Adkins called
Sellers to set up a purchase. Sellers, however, was out of
town, and arranged to have his friend, Brandon Pugh, who was
staying at his apartment for the weekend, handle the drug
transaction. Following the transaction, police arrested Adkins
and Pugh. Sellers was later arrested in Charlotte, North
Carolina. Sellers and Pugh were indicted on the above charges,
and Adkins was indicted on Count One and several counts related
to her transactions with the confidential informant. Adkins
pleaded guilty and was sentenced to forty-one months in prison.
As part of her plea agreement she agreed to testify against
Sellers and Pugh.
At trial, the Government relied on testimony from
Adkins and the confidential informant, as well as law-
enforcement officials, taxi drivers familiar with Adkins, and
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several smaller-use drug users. The Government also presented
physical evidence found during the execution of a search warrant
at Sellers’ apartment. Law-enforcement officials found twenty-
seven grams of cocaine, two digital scales, plastic bags, and
$4100 cash. Law enforcement officials also seized Pugh’s cell
phone, which contained photos of the money and drugs found in
the apartment. At trial, Pugh testified and denied selling
crack to Adkins. Pugh claimed he received $150 from her, which
he said was repayment for a loan she owed to Sellers. Both
Sellers and Pugh essentially argued that Adkins was responsible
for the drugs in the apartment and for engaging in drug
trafficking during the time in question.
First, Sellers claims the district court erred by not
granting his motion to depose co-defendant Ashley Adkins.
Sellers’ claim lacks merit. Sellers argues he was not able to
cross-examine Adkins effectively without a pretrial deposition.
Sellers claims this failure violated his right to exculpatory
evidence under Brady v. Maryland, 373 U.S. 83 (1963), Giglio v.
United States, 405 U.S. 150 (1972), and the Jencks Act, 18
U.S.C. § 3500 (2006). He is incorrect. As an initial matter,
no statute or case gives Sellers the authority to depose Adkins,
who voluntarily chose not to speak with Sellers’ attorney.
Second, Sellers does not point to any potential exculpatory
evidence that Adkins possessed. Sellers had a copy of Adkins’
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plea agreement and was able to challenge her credibility based
on the concessions she received as part of the plea. Neither
the Federal Rules of Criminal Procedure nor this court’s case
law require the district court to allow a defendant to depose a
witness who is available for trial and voluntarily elects not to
speak to defendant’s counsel. Therefore, the district court did
not abuse its discretion in denying Sellers’ motion to depose
Ashley Adkins.
Sellers and Pugh both challenge the sufficiency of the
evidence supporting their convictions. In assessing the
sufficiency of the evidence presented in a bench trial, we “must
uphold a guilty verdict if, taking the view most favorable to
the Government, there is substantial evidence to support the
verdict.” Elliott v. United States, 332 F.3d 753, 760-61 (4th
Cir. 2003). “Substantial evidence” means “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.” United States v. Burgos, 94 F.3d 849, 862
(4th Cir. 1996).
On appeal, Sellers and Pugh argue, as they did at
trial, that Adkins’ explanation of Sellers’ drug-trafficking
operation was uncorroborated and inadequate to support their
convictions. We disagree. While Adkins both used and
distributed drugs, she could not have conducted any business
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without Sellers, who was her supplier. As demonstrated by
numerous witnesses, Adkins did not generally have crack cocaine
available for sale and had to make arrangements with Sellers if
she wanted to distribute drugs. During the course of the
conspiracy, one cab driver estimated that he drove Adkins to
Sellers’ apartment building between 200 and 300 times. Other
cab drivers and drug users similarly corroborated Adkins’
frequent drug purchases from Sellers. These transactions are
also supported by the parties’ cell phone records, showing
frequent calls consistent with drug trafficking.
Finally, Sellers and Pugh challenge the calculation
and reasonableness of their sentences. It is now well settled
that, after Booker v. United States, 543 U.S. 220 (2005), this
court reviews a sentence for reasonableness, applying an abuse
of discretion standard. Gall v. United States, 552 U.S. 38, 51
(2007); see also United States v. Layton, 564 F.3d 330, 335 (4th
Cir.), cert. denied, 130 S. Ct. 290 (2009). This review
requires appellate consideration of both the procedural and
substantive reasonableness of a sentence. Gall, 552 U.S. at 51.
In determining procedural reasonableness, this court considers
whether the district court properly calculated the defendant’s
advisory Guidelines range, considered the 18 U.S.C. § 3553(a)
(2006) factors, analyzed any arguments presented by the parties,
and sufficiently explained the selected sentence. Id.7
“Regardless of whether the district court imposes an above,
below, or within-Guidelines sentence, it must place on the
record an individualized assessment based on the particular
facts of the case before it.” United States v. Carter, 564 F.3d
325, 330 (4th Cir. 2009) (internal quotation marks omitted). We
next assess the substantive reasonableness of the sentence,
“taking into account the ‘totality of the circumstances,
including the extent of any variance from the Guidelines
range.’” United States v. Pauley, 511 F.3d 468, 473 (4th Cir.
2007) (quoting Gall, 552 U.S. at 51).
The Defendants raise challenges to both the procedural
and substantive reasonableness of their sentences. Sellers
claims the trial court erroneously calculated the amount of
drugs involved and erroneously imposed a two-point leadership
enhancement. Sellers’ claims, even if they had merit, would
have no effect on the calculation of his adjusted offense level
because he was sentenced as a career offender. The district
court made this clear, and Sellers did not object to the career
offender designation. Further, to the extent that Sellers
challenges the length of his sentence, his claim is without
merit. The district court considered the 18 U.S.C. § 3553(a)
factors and found Sellers’ conduct in this offense, as well as
his previous felony convictions, justified a sentence in the
middle of the Sentencing Guidelines range. On appeal, Sellers
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has not rebutted the presumption that his within-Guidelines
sentence was reasonable.
Pugh also challenges the calculation of his sentence.
He claims the district court failed to consider his relatively
minor role in the offense when evaluating the § 3553(a) factors.
Additionally, Pugh claims the district court erred in converting
the cash found in the apartment to cocaine base and failing to
deduct legitimate funds from the drug proceeds.
We find that the district court properly considered
Pugh’s involvement in the offense, which included supplying
cocaine base to Adkins when Sellers was in Florida. Similarly,
in fashioning Pugh’s sentence, the district court properly
considered Pugh’s prior felony convictions and then did, in
fact, impose a downward variance of twenty-four months from the
bottom of the properly calculated Guidelines range. Further,
Pugh does not challenge the district court’s authority to
convert some of the money to drugs, only the court’s decision to
convert the money to cocaine base rather than marijuana and the
court’s failure to deduct $2900 in allegedly legitimate proceeds
from the $4100. Considering that this case principally involved
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crack and that Pugh handled and photographed all the money, we
find the district court did not err. ∗
For the above reasons, we affirm the convictions and
sentences for Sellers and Pugh. 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
∗
In reviewing a district court's application of the
Sentencing Guidelines, we review the district court's factual
findings for clear error and its legal conclusions de novo.
United States v. Sosa-Carabantes, 561 F.3d 256, 259 (4th Cir.
2009). At the sentencing hearing in Pugh’s case, the district
court supported its decision to hold Pugh responsible for sixty
grams of cocaine stating: “[w]ith regard to relevant conduct, he
is only being held responsible for the conduct related to that
night. Yes, most of the money was in Mr. Sellers’ room but it
is clear from the marked buy money that Mr. Pugh put it there.”
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