United States v. Payton , 302 F. App'x 225 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4965
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
WILLIAM TYRONE PAYTON,
Defendant – Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Peter J. Messitte, Senior District
Judge. (8:06-cr-00341)
Submitted: November 10, 2008 Decided: December 8, 2008
Before WILKINSON, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Daniel H. Ginsburg, BENNETT & BAIR, LLC, Greenbelt, Maryland,
for Appellant. Rod J. Rosenstein, United States Attorney, David
I. Salem, Jonathan Su, Assistant United States Attorneys,
Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
William Tyrone Payton was convicted by a jury of
conspiracy to distribute 500 grams or more of cocaine, in
violation of 21 U.S.C. §§ 846, 853 (2000), use of a
communication device to facilitate a cocaine conspiracy, in
violation of 21 U.S.C. § 843(b) (2000), and distribution of 500
grams or more of cocaine, in violation of 21 U.S.C. § 841(2000), and was sentenced to 292 months in prison. Payton
asserts that the district court: (i) violated his Fifth
Amendment rights by constructively amending his indictment so he
could be convicted based on his marijuana sales; (ii) erred when
it admitted evidence of his prior cocaine-related convictions;
(iii) erroneously sentenced him as a career offender based, in
part, on his prior 18 U.S.C. § 924(c) (2006) conviction; and
(iv) erred in refusing to lower his offense level because of his
allegedly minor role in the conspiracy of which he was
convicted. Finding no reversible error, we affirm.
First, we find that the district court did not
constructively amend Payton’s indictment. A constructive
amendment occurs when the bases for conviction are broadened
beyond those charged in the indictment. United States
v. Randall, 171 F.3d 195, 203 (4th Cir. 1999). Although this
may occur if a district court’s jury instructions broaden the
possible bases for conviction beyond those presented to the
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grand jury, United States v. Floresca, 38 F.3d 706, 710 (4th
Cir. 1994) (en banc), we conclude that the district court’s jury
instructions did not constructively amend Payton’s indictment.
The district court correctly instructed the jury that it could
find Payton guilty of the cocaine-related charges in his
indictment, regardless of his marijuana dealings, so long as
they found he engaged in the cocaine-related conduct with which
he was charged.
We also reject Payton’s assertion that the district
court erred in admitting his prior cocaine-related convictions
under Fed. R. Evid. 404(b). Substantial deference is due a
district court’s evidentiary rulings and reversal may occur only
when there has been an abuse of discretion. See General Elec.
Co. v. Joiner, 522 U.S. 136, 141 (1997). Rule 404(b) decisions
by the district court are discretionary and will not be
overturned unless arbitrary or irrational. See United States
v. Powers, 59 F.3d 1460, 1464 (4th Cir. 1995).
Because Payton pled not guilty to the crimes with
which he was charged, he placed his mental state in issue and
the Government was authorized to offer evidence of prior bad
acts tending to establish Payton’s intent and knowledge
regarding the cocaine conspiracy. See United States v. Mark,
943 F.2d 444, 448 (4th Cir. 1991) (holding that evidence of
prior drug transactions was offered for a proper purpose because
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a defendant’s knowledge and intent are elements of a § 841
charge and the evidence admitted showed how the defendant
obtained the drugs he was charged with selling and that he was
“a major cocaine distributor responsible for the transaction at
issue”).
Since Payton admitted that he was around the cocaine
conspiracy with which he was charged, but suggested he was
involved in legitimate business transactions or only conspired
to sell marijuana, we find that Payton’s prior cocaine-related
convictions were relevant to establish: (i) his knowledge of the
cocaine trade; and (ii) that his intent in the conspiracy was to
sell cocaine. See United States v. Hodge, 354 F.3d 305, 312
(4th Cir. 2004) (finding that evidence of other drug
transactions was relevant and necessary because it tended to
show the existence of a continuing narcotics business and
therefore showed that defendant had “knowledge of the drug trade
and his intent [was] to distribute the cocaine”); see also
United States v. Branch, 537 F.3d 328, 341-42 (4th Cir. 2008)
(upholding admissibility of prior conviction for possession with
intent to distribute cocaine base as evidence of intent and
knowledge in later prosecution for cocaine base possession and
distribution).
Although Payton also argues that the probative value
of the prior bad acts evidence was substantially outweighed by
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its prejudicial effect, we conclude that the district court’s
limiting instruction to the jury, as well as the initial Rule
404(b) notice that was given to Payton by the Government, was
sufficient to reduce any prejudicial effect the evidence may
have had. See United States v. Queen, 132 F.3d 991, 997 (4th
Cir. 1997) (holding that the fear a jury may improperly use Rule
404(b) evidence subsides when the trial judge gives the jury a
limiting instruction regarding proper use, and that “the fear of
a ‘trial by ambush’ recedes” when the prosecution has given
notice of the evidence to be introduced). *
We also find that Payton’s sentence is reasonable.
See Rita v. United States, 127 S. Ct. 2456, 2462-69 (2007)
(upholding presumption of reasonableness for within—Guidelines
sentence); United States v. Go, 517 F.3d 216, 218 (4th Cir.
2008) (same). Because Payton possessed two prior convictions
for felony controlled substance offenses, we find that the
district court did not err in classifying Payton as a career
offender under U.S. Sentencing Guidelines Manual (“USSG”)
§ 4B1.1 (2006).
*
Even if the district court erred in admitting Payton’s
prior bad acts evidence, given the substantial evidence of
Payton’s guilt in the cocaine conspiracy, we would find that the
verdict would have been the same absent any error. See United
States v. Williams, 461 F.3d 441, 448-49 (4th Cir. 2006).
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Additionally, we uphold the district court’s decision
to deny Payton a two-level downward adjustment in his offense
level for his claimed minor role in the conspiracy, pursuant to
USSG § 3B1.2 (2006), since “[a] seller possesses a central
position in a drug distribution conspiracy,” even if he
participated in the conspiracy for a relatively brief period of
time. See United States v. Brooks, 957 F.2d 1138, 1149 (4th
Cir. 1992); see also United States v. Daughtrey, 874 F.2d 213,
218-19 (4th Cir. 1989) (recognizing that simply because a
criminal conspiracy participant does not conceive of the
conspiracy does not mean that he should be assigned a minor role
adjustment if he helped to implement it).
Accordingly, 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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