United States v. Alexander ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-5198
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROBERT BERNARD ALEXANDER,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, Jr.,
District Judge. (1:08-cr-00269-WO-1)
Submitted: August 6, 2010 Decided: August 17, 2010
Before TRAXLER, Chief Judge, and GREGORY and AGEE, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen III, Federal Public Defender, Eric D. Placke,
Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Greensboro, North Carolina, for Appellant. Anna Mills
Wagoner, United States Attorney, Greensboro, North Carolina,
Paul A. Weinman, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Winston-Salem, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury convicted Robert Bernard Alexander of possessing
with intent to distribute 35.9 grams of crack in violation of 21
U.S.C. § § 841(a)(1) and (b)(1)(B). The district court sentenced
Alexander to a prison term of 262 months, and Alexander now
appeals his conviction and sentence. Finding no error, we
affirm.
Alexander first challenges the district court’s order
denying his motion to suppress the cocaine base found during a
search of his residence following his arrest for driving with a
revoked license. “In reviewing a district court's ruling on a
motion to suppress, we review the court's factual findings for
clear error, and its legal conclusions de novo.” United States
v. Cain, 524 F.3d 477, 481 (4th Cir. 2008). When the district
court denies a defendant's suppression motion, we construe “the
evidence in the light most favorable to the government.” United
States v. Grossman, 400 F.3d 212, 216 (4th Cir. 2005).
Alexander argues that the government failed to meet its
burden of establishing voluntary consent. A statement is
voluntary if it is “the product of an essentially free and
unconstrained choice by its maker.” Schneckloth v. Bustamonte,
412 U.S. 218, 225 (1973). The relevant determination regarding
voluntariness is whether government agents have overborne the
defendant’s will or left his “capacity for self-determination
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critically impaired.” Id. Whether consent is given voluntarily
or is the product of duress or coercion is a question of fact
that is determined from the totality of all the circumstances
and, accordingly, is reviewed under the clearly erroneous
standard. See id. at 248-49 (explaining that “[v]oluntariness
is a question of fact to be determined from all the
circumstances”); United States v. Lattimore, 87 F.3d 647, 650
(4th Cir. 1996) (en banc) (“The voluntariness of consent to
search is a factual question, and as a reviewing court, we must
affirm the determination of the district court unless its
finding is clearly erroneous.”). Relevant considerations
include “the characteristics of the accused (such as age,
maturity, education, intelligence, and experience) as well as
the conditions under which the consent to search was given (such
as the officer's conduct; the number of officers present; and
the duration, location, and time of the encounter).” See
Lattimore, 87 F.3d at 650.
We have reviewed the record and conclude that the district
court’s finding that Alexander voluntarily consented to the
search of his residence was not clearly erroneous. Viewed in
the light most favorable to the government, the evidence showed
that Alexander gave both written and verbal consent for officers
to search the residence and that such consent was voluntary.
The encounter took place in the defendant’s residence in the
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afternoon during daylight hours; almost all of the officers were
in plain clothes and the defendant knew some of them; none of
the officers brandished a weapon; the search lasted for only one
hour; the defendant cooperated and even volunteered information;
and the defendant was aware of his right to refuse consent as
shown by his initial refusal to turn over the key and the fact
that “he was aware that officers had to obtain his agreement to
[perform] the limited protective sweep before they could enter
his home.” J.A. 92. To the extent that Alexander asserts a new
challenge to the evidence recovered from his residence as
derivative of an illegal search of his vehicle, our review of
the record under the plain error standard reveals no basis for
reversal. See United States v. Lynn, 592 F.3d 572, 577 (4th
Cir. 2010) (“[I]n the absence of proper preservation, plain-
error review applies.”).
Alexander next challenges the sufficiency of the evidence.
This Court reviews “de novo a district court's denial of a
motion, made pursuant to Rule 29 of the Federal Rules of
Criminal Procedure, for judgment of acquittal.” United States
v. Smith, 451 F.3d 209, 216 (4th Cir. 2006). In undertaking
such a review, this Court is “obliged to sustain a guilty
verdict if, viewing the evidence in the light most favorable to
the prosecution, the verdict is supported by substantial
evidence.” Id. (internal quotation marks omitted). In
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determining whether the evidence is substantial, this Court
“view[s] the evidence in the light most favorable to the
government and inquire[s] whether there is 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. Foster, 507 F.3d 233, 245
(4th Cir. 2007).
In order to establish possession with intent to
distribute, the Government had to prove beyond a reasonable
doubt: “(1) possession of the cocaine base; (2) knowledge of
this possession; and (3) intention to distribute the cocaine
base.” See United States v. Burgos, 94 F.3d 849, 873 (4th Cir.
1996) (en banc). Possession can be actual or constructive--“[a]
defendant may have constructive possession of contraband even if
it is not in his immediate possession or control.” United
States v. Shorter, 328 F.3d 167, 172 (4th Cir. 2003).
“Constructive possession may be proved by demonstrating that the
defendant exercised, or had the power to exercise, dominion and
control over the item.” Burgos, 94 F.3d at 873 (internal
quotation marks omitted). Furthermore, “[l]ike conspiracy,
[c]onstructive possession may be established by either
circumstantial or direct evidence.” Id. (internal quotation
marks omitted).
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Alexander argues that the government failed to prove the
elements of possession. Our review of the record, however,
leads us to conclude that the evidence was more than sufficient
to establish Alexander’s possession of the narcotics,
constructive or actual.
Finally, Alexander challenges the procedural reasonableness
of his sentence. This Court reviews a sentence for
reasonableness under an abuse of discretion standard, Gall v.
United States, 552 U.S. 38, 51 (2007), which requires
consideration of both the procedural and substantive
reasonableness of a sentence. An appellate court must ensure
that the district court did not commit any “significant
procedural error,” such as failing to properly calculate the
guidelines range, failing to consider the 18 U.S.C. § 3553(a)
factors, failing to analyze any arguments presented by the
parties, or failing to adequately explain the selected sentence.
Id. at 51.
Alexander concedes that the district court correctly
calculated the advisory guideline range of 262 to 327 months.
However, he argues that the district court failed to
sufficiently explain the reasons for the sentence it imposed and
its rejection of Alexander’s request for a downward variance to
account for the guidelines’ disparity between offenses involving
cocaine powder and those involving crack cocaine. “When
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rendering a sentence, the district court must make an
individualized assessment based on the facts presented,”
applying the “relevant § 3553(a) factors to the specific
circumstances of the case before it.” United States v. Carter,
564 F.3d 325, 328 (4th Cir. 2009) (internal quotation marks and
emphasis omitted). The court must also “state in open court the
particular reasons supporting its chosen sentence,” id.(internal quotation marks omitted), but, “[w]hen imposing a
sentence within the Guidelines, . . . the [court’s] explanation
need not be elaborate or lengthy because [G]uidelines sentences
themselves are in many ways tailored to the individual and
reflect approximately two decades of close attention to federal
sentencing policy,” United States v. Hernandez, 603 F.3d 267,
271 (4th Cir. 2010) (internal quotation marks omitted). We have
carefully reviewed the record and conclude that the district
court’s explanation was sufficient to show that it had
considered Alexander’s argument and that it had a reasoned basis
for imposing the sentence that it selected.
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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