United States v. Rogers , 409 F. App'x 607 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4263
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
EDDIE BERNARD ROGERS, a/k/a Mookie,
Defendant - Appellant.
No. 09-4426
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MELANIE DEVONE ROGERS,
Defendant - Appellant.
Appeals from the United States District Court for the Middle
District of North Carolina, at Greensboro. N. Carlton Tilley,
Jr., Senior District Judge. (1:07-cr-00208-NCT-1; 1:07-cr-
00208-NCT-4)
Argued: September 22, 2010 Decided: December 17, 2010
Before NIEMEYER and DUNCAN, Circuit Judges, and Robert J.
CONRAD, Jr., Chief United States District Judge for the Western
District of North Carolina, sitting by designation.
Affirmed by unpublished opinion. Judge Conrad wrote the
opinion, in which Judge Niemeyer and Judge Duncan joined.
ARGUED: Milton Gordon Widenhouse, Jr., RUDOLF, WIDENHOUSE &
FIALKO, Chapel Hill, North Carolina; Gregory Davis, OFFICE OF
THE FEDERAL PUBLIC DEFENDER, Winston-Salem, North Carolina, for
Appellants. Randall Stuart Galyon, OFFICE OF THE UNITED STATES
ATTORNEY, Greensboro, North Carolina, for Appellee. ON BRIEF:
Louis C. Allen, Federal Public Defender, Greensboro, North
Carolina, for Appellants. Anna Mills Wagoner, United States
Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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CONRAD, Chief District Judge:
Eddie Rogers (Mr. Rogers) and his wife Melanie Rogers (Mrs.
Rogers) appeal their convictions and sentences following a jury
trial on one count of conspiracy to distribute 50 grams or more
of crack cocaine in violation of 21 U.S.C. § 846 and one count
of maintaining a place for the purpose of distributing crack
cocaine in violation of 21 U.S.C. § 856(a)(1) and § 856(b). On
appeal, they allege that 1) their sentences are unreasonable; 2)
their sentences violate the Sixth Amendment; and 3) with respect
to Mrs. Rogers, there is insufficient evidence to support her
conviction. For the following reasons, we affirm the judgment
of the district court.
I.
On May 30, 2007, the appellants were indicted for
conspiring with three others to distribute 50 grams or more of
crack cocaine (Count One), Mr. Rogers was indicted for two
substantive counts of crack cocaine distribution (Counts Two and
Three), and both were indicted for maintaining their house in
Laurinburg, North Carolina for the purpose of distributing crack
cocaine (Count Four). The indictment was the result of a multi-
year drug investigation by North Carolina law enforcement. The
appellants proceeded to a joint trial where the Government
introduced testimony from undercover officers and co-
3
conspirators, evidence seized during several controlled
purchases, and evidence seized during two searches of the
appellants’ residence to show that the appellants were
distributing crack cocaine from their home between 2002 and
2006. Mr. Rogers testified that he only sold cocaine on one
day, to one person, in 2006. Mrs. Rogers testified that she was
not involved in dealing drugs.
On August 29, 2007, a jury found that the appellants were
guilty of Count One and Count Four. In the jury charge, the
district court included a special interrogatory for the jury to
determine the drug amounts for which each defendant was
individually responsible as to Count One. The jury found Mr.
Rogers accountable for 13.4 grams of crack cocaine; Mrs. Rogers
was found accountable for 12.6 grams. Mr. Rogers was acquitted
on Counts Two and Three of the indictment, relating to two
distributions of crack cocaine in the amounts of 32 grams and
63.5 grams, respectively.
After the trial, the Probation Office prepared a
Presentence Report (PSR) that attributed 6.64 kilograms
(6,643.75 grams) of crack cocaine to the appellants, based on
the trial testimony. The appellants objected to the drug
quantity in the PSR at the initial sentencing hearing on August
22, 2008, so the district court continued the hearing to give
the parties time to address this issue. On February 19, 2009,
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the Government recalled two witnesses to testify regarding the
drug quantity. The district court found that the first witness,
Michael Bethea, received at least 28 grams of crack cocaine from
the appellants, noting that this amount was “probably a lot less
than he got, and I’m confident that he got at least that much,
and I suspect much more . . . .” Joint Appendix (J.A.) 882.
The district court found that the testimony of the second
witness, Preston Stubbs McPhatter, established that the
appellants were responsible for another 84 grams of crack
cocaine. The court added the 13.8 grams of crack cocaine that
had been seized by law enforcement officers during their
investigation into the conspiracy, excluding the amounts related
to Counts Two and Three, and reached a total drug quantity of
125.8 grams. The court noted that this total “is a low amount I
found. This is in the favor of the Defendants, make no pretense
that it’s not.” J.A. 884.
After hearing and rejecting arguments for a variance, the
district court sentenced Mr. Rogers to 284 months imprisonment,
near the top of his advisory Sentencing Guidelines (Guidelines)
range. Mrs. Rogers was sentenced to 151 months imprisonment, at
the lowest end of her Guidelines range. This appeal followed.
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II.
The appellants argue that their sentences are unreasonable
on two levels: first, Mr. Rogers argues that his sentence is
procedurally unreasonable based on two assignments of error, and
second, both appellants argue that their sentences are
substantively unreasonable because they are greater than
necessary to accomplish the goals of 18 U.S.C. § 3553(a). We
review a sentence for reasonableness under an abuse of
discretion standard. Gall v. United States, 552 U.S. 38, 51
(2007). We start by reviewing the sentence for significant
procedural error, which requires us to assess whether the
district court properly calculated the Guidelines range,
considered the 18 U.S.C. § 3553(a) factors, analyzed any
arguments presented by the parties, and sufficiently explained
the selected sentence. See id. at 49-50; see also United States
v. Lynn, 592 F.3d 572, 576 (4th Cir. 2010).
Mr. Rogers’s first claim of procedural error relates to the
drug quantity that the district court attributed to him at
sentencing. Section 1B1.3 of the Guidelines permits district
courts to take “relevant conduct” into account in determining a
defendant’s sentence under the Guidelines. Thus, although the
jury found Mr. Rogers responsible for 13.4 grams of crack
cocaine in Count One, that amount was only used to determine
statutory penalties and did not preclude the district court from
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considering all relevant conduct in calculating the drug
quantity for the purpose of setting a Guidelines range. Mr.
Rogers argues, however, that the district court mistakenly
thought that it lacked the authority to use the jury-determined
drug quantity, which was lower. As a result of the court
calculating the drug quantity, Mr. Rogers received a higher
sentence than he would have if the district court used the jury-
determined amount. The claim that the district court did not
know that it could use the jury-determined amount is derived
from the following exchange between Mr. Rogers’s trial counsel
and the district court:
MR. FISCHER: . . . our position is, the logical
extension of all of the language that’s been in
Blakely and Apprendi and all of these cases that have
gotten us to where we are now, where a jury has to
decide drug amounts, is that when the jury hears that
and decides beyond a reasonable doubt in their
collective wisdom what a figure is, not just for
computation of the statutory maximum, but for
application of the advisory guidelines, that that’s
the figure that’s used. I understand that is not
strictly what the law says.
THE COURT: It is not strictly what the law says. It
is not even what the law says, even permissibly . . .
It’s not the law.
J.A. 878 (emphasis added). Mr. Rogers isolates only the
district court’s statement. It is clear from the entire
exchange, however, that the district court was simply rejecting
the argument that it was required to use the jury-determined
drug amount for advisory Guidelines computations. The court
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never said that it was prohibited from using that amount if it
so chose; its refusal to exercise its judgment in Mr. Rogers’s
favor hardly constitutes procedural error.
Moreover, Mr. Rogers’s claim is based on a misapplication
of Spears v. United States, 129 S. Ct. 840 (2009) (per curiam)
and Kimbrough v. United States, 552 U.S. 85 (2007). In Spears,
the Supreme Court upheld a district court’s reasoning — after it
first determined the defendant’s drug quantity and corresponding
offense level — in recalculating the offense level based on a
lower crack-to-powder ratio. Spears, 129 S. Ct. at 841, 845.
In doing so, the Supreme Court clarified its holding in
Kimbrough by establishing that the authority of district courts
to vary from the crack-to-powder ratio in the Guidelines is not
limited to individualized, case-specific circumstances but
includes categorical, policy-based rejections of that ratio.
Id. at 843-44 (citing Kimbrough, 525 U.S. at 111).
Neither Spears nor Kimbrough dealt with a district court’s
threshold determination of drug amounts. Rather, they concerned
the application of the crack-to-powder ratio in fashioning a
sentence after the drug amount and the resultant Guidelines
range had already been established. This is because under the
Guidelines, a district court must first determine drug amounts,
including relevant conduct amounts, before it can determine the
applicable Guidelines range. See USSG §§ 1B1.2, 1B1.3. Only
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after the Guidelines range is calculated can a court decide
whether it will vary on the basis of the crack-to-powder ratio,
and by how much. The Supreme Court’s holdings in Spears and
Kimbrough do not support extending the district court’s
authority to vary from the Guidelines range to include the
authority to change the underlying facts. Judges, like
laypeople, are entitled to their own opinions but not their own
facts.
Mr. Rogers’s second claim of procedural unreasonableness is
that the district court erred because “it is unclear” if it
included conduct from Counts Two and Three, for which he was
acquitted, as relevant conduct in determining the drug amount
attributable to Mr. Rogers for sentencing purposes. On the
contrary, it is quite clear from a plain reading of the
sentencing hearing transcript that the district court did not
include the 95.5 grams of crack cocaine from Counts Two and
Three in calculating the drug amount. Rather, the court
combined the drug quantity established at the sentencing hearing
(112 grams) with the amount of crack cocaine seized by law
enforcement (13.8 grams), which excluded the drug amounts
related to Counts Two and Three, to reach a total drug quantity
of 125.8 grams. As such, there is no basis for claiming that
acquitted conduct was taken into account.
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Moreover, even if the district court had included acquitted
conduct in determining the drug quantity for which Mr. Rogers
was responsible, there would still be no procedural error.
Under settled law, sentencing courts may consider uncharged and
even acquitted conduct in determining a sentence, so long as the
conduct is proven by a preponderance of the evidence. See
United States v. Watts, 519 U.S. 148, 157 (1997); United States
v. Jones, 31 F.3d 1304, 1316 (4th Cir. 1994). As we have
previously held, United States v. Booker, 543 U.S. 220 (2005)
did not change the trial court’s authority to make factual
findings concerning sentencing factors by a preponderance of the
evidence. See United States v. Morris, 429 F.3d 65, 72 (4th
Cir. 2005), cert. denied, 549 U.S. 852 (2006). The district
court’s finding, based on a preponderance of the evidence, that
Mr. Rogers was responsible for 125.8 grams of crack cocaine was
therefore appropriate.
Since the district court committed no procedural error, we
next evaluate whether the sentence was substantively reasonable.
Here, we take into account “the totality of the circumstances to
see whether the sentencing court abused its discretion in
concluding that the sentence it chose satisfied the standards
set forth in § 3553(a).” United States v. Mendoza-Mendoza, 597
F.3d 212, 216 (4th Cir. 2010) (citing Gall, 552 U.S. at 51). A
sentence within a properly determined Guidelines range is
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presumed to be substantively reasonable. See Mendoza-Mendoza,
597 F.3d at 216 (citing Rita v. United States, 551 U.S. 338, 351
(2007)); United States v. Abu Ali, 528 F.3d 210, 261 (4th Cir.
2008).
The appellants both contend that their sentences are
substantively unreasonable because the disparity in the
Guidelines’s treatment of crack cocaine as opposed to powder
cocaine offenses results in sentences greater than necessary to
accomplish the goals of 18 U.S.C. § 3553(a). 1 The appellants
highlight a statement made by a Department of Justice (DOJ)
official after they were sentenced, urging Congress to eliminate
the sentencing disparity between crack and powder cocaine and
ask us to indulge a counterfactual conditional: if this
statement had been made earlier, then the prosecutor in this
case would have asked the district court to apply the Guidelines
range for powder instead of crack, which would have resulted in
lower sentences for both defendants.
Even if this scenario had occurred, which is pure
speculation, neither the DOJ official’s statement nor the
recommendation by the prosecutor would have required the
1
Mr. Rogers also contends that his sentence is
substantively unreasonable because the district court found him
responsible for a much higher drug quantity than that found by
the jury. As already explained, this argument is foreclosed by
the district court’s clear authority to make certain factual
findings at sentencing.
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district court to reject the Guidelines’s crack-to-powder ratio.
We have repeatedly rejected claims that the crack-to-powder
ratio violates either the Equal Protection Clause or a
defendant’s due process rights. See, e.g., United States v.
Perkins, 108 F.3d 512, 518, 519 (4th Cir. 1997). Moreover,
while Spears permits a district court to substitute its own
crack-to-powder ratio if it determines the sentencing disparity
is unwarranted, it does not require courts to apply a lower
ratio. See 129 S. Ct. at 843-44. Here, the district court did
not determine that the sentencing disparity was unwarranted. In
fact, it heard from the parties on the disparity issue,
expressly recognized its authority to vary, and found that this
particular case did not call for a variant sentence based on the
disparity. See J.A. 897. Then, the court thoroughly discussed
the relevant § 3553(a) factors that informed its decision 2 and
imposed sentences that were within the Guidelines range. We
thus conclude, based on a totality of the circumstances, that
the sentencing court did not abuse its discretion, and the
2
This discussion included that: the court’s finding of drug
amounts were less than they could have been, and so its decision
was “ultimately fair to the Defendants” (J.A. 897); the crack
cocaine that appellants sold had “horrible,” “[t]errible effects
on people,” and the appellants were “there for a long period of
time putting that stuff out” (J.A. 924); firearms were
prevalent, “laying out in the living room,” even around children
(J.A. 925); Mr. Rogers showed a lack of remorse; both of the
Rogerses lied to the court about their activities; but a
sentence that included a fine would impose an undue hardship.
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appellants have not rebutted the presumption of reasonableness
that we apply to a sentence within the properly calculated
Guidelines range.
The appellants next contend that their sentences violate
the Sixth Amendment. They argue that the district court used
facts concerning relevant conduct drug amounts that were not
found by the jury. However, they acknowledge that adverse
authority precludes this claim and thus raise the issue solely
for the purpose of preservation. As we have repeatedly held,
this claim is meritless. See United States v. Benkahla, 530
F.3d 300, 312 (4th Cir. 2008) (rejecting as “too creative for the
law as it stands” the argument that sentences that depend on
judge-found facts in order to survive reasonableness review
violate the Sixth Amendment); United States v. Battle, 499 F.3d
315, 322 (4th Cir. 2007) (holding that the district court did
not violate the Sixth Amendment by imposing a sentence based on
facts not found by a jury); see also Rita, 551 U.S. at 352(holding that the presumption of reasonableness that applies to
sentences that are within the Guidelines does not violate the
Sixth Amendment because “[t]his Court’s Sixth Amendment cases do
not automatically forbid a sentencing court to take account of
factual matters not determined by a jury and to increase the
sentence in consequence”).
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Finally, Mrs. Rogers claims that the evidence supporting
her conviction is insufficient because all of it was based on
witnesses who were untruthful. Mrs. Rogers acknowledges,
however, that the credibility of witnesses is not subject to
appellate review and thus raises this issue only “to preserve it
in the event that new evidence of the witnesses’ untruthfulness
comes to light.” Appellant’s Brief at 21.
Our review must determine whether there is substantial
evidence in the record, viewed in the light most favorable to
the Government, to support the jury's finding that Mrs. Rogers
is guilty beyond a reasonable doubt. See, e.g., United States
v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997). But as Mrs.
Rogers concedes, “we may not ‘weigh the evidence or review the
credibility of the witnesses’ on appellate review.” United
States v. Perry, 335 F.3d 316, 320 (4th Cir. 2003) (quoting
United States v. Wilson, 118 F.3d 228, 234 (4th Cir. 1997)).
Because this claim is entirely based upon the credibility of
witnesses, and no new evidence supporting this claim has come to
light, it must be dismissed.
III.
For the foregoing reasons, we affirm the judgment of the
district court.
AFFIRMED
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