United States v. Randall Hill , 684 F. App'x 325 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4142
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
RANDALL STEWART HILL,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Wilmington. James C. Fox, Senior District Judge. (7:15-cr-00037-F-1)
Submitted: March 31, 2017 Decided: April 7, 2017
Before KING, DIAZ, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Joseph E. Zeszotarski, Jr., GAMMON, HOWARD & ZESZOTARSKI, PLLC, Raleigh,
North Carolina, for Appellant. John Stuart Bruce, United States Attorney, Jennifer P. May-
Parker, First Assistant United States Attorney, Barbara D. Kocher, Assistant United States
Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Randall Stewart Hill was convicted after a jury trial for conspiracy to manufacture,
distribute, dispense, and possess methamphetamine. The jury determined that the quantity
of methamphetamine involved was 500 grams or more. Hill received a 420-month
sentence. On appeal, Hill argues that the district court did not properly instruct the jury as
to drug quantity, that the Government made improper remarks at closing argument
requiring a new trial or resentencing, and the district court erred in applying a sentencing
enhancement for possession of a firearm in connection with the offense. We affirm.
We review “the district court’s jury instructions in their entirety and as part of the
whole trial, and focus on whether the district court adequately instructed the jury regarding
the elements of the offense and the defendant’s defenses.” United States v. Wilson, 198
F.3d 467, 469 (4th Cir. 1999) (internal citation omitted). Hill acknowledges that his failure
to object to the quantity instructions subjects this issue to plain error review. United States
v. Robinson, 627 F.3d 941, 953 (4th Cir. 2010). To establish plain error, Hill must show:
(1) there was an error, (2) that was plain, and (3) that affected his substantial rights. United
States v. Olano, 507 U.S. 725, 732, 735-36 (1993). Further, we will exercise our discretion
and reverse a conviction based on plain error only where the error “seriously affects the
fairness, integrity or public reputation of judicial proceedings.” Id. at 732, 736 (brackets
and internal quotation marks omitted).
Hill argues that the district court failed to instruct the jury that the quantity of
methamphetamine attributable to him in the conspiracy is an element of the offense, and
that the quantity determination must be made beyond a reasonable doubt. He further argues
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that the court failed to instruct the jury on the proper method of determining the quantity
of methamphetamine attributable to him, in violation of United States v. Collins, 415 F.3d
304 (4th Cir. 2005).
“The purpose of jury instructions is to instruct the jury clearly regarding the law to
be applied in the case.” United States v. Lewis, 53 F.3d 29, 34 (4th Cir. 1995). Following
Apprendi, * it is the jury’s responsibility to determine the specific, statutory threshold drug
quantity attributable to any particular member of a drug conspiracy. Collins, 415 F.3d at
313-14. In Collins, this court held that, in a 21 U.S.C. § 846 (2012) drug conspiracy
prosecution, the threshold drug quantities for purposes of applying the graduated penalty
provisions in 21 U.S.C. § 841(b)(1) (2012) must be determined by a jury beyond a
reasonable doubt. Collins, 415 F.3d at 313-14. The court held further that a district court
must, pursuant to Pinkerton v. United States, 328 U.S. 640, 646-48 (1946) (concluding
that, in a criminal conspiracy case, a defendant can only be held liable for conduct that is
within the scope of the criminal agreement and reasonably foreseeable as a natural
consequence of the agreement), instruct the jury to determine the drug quantity attributable
to any one defendant in the conspiracy—that is, the amount that was in furtherance of the
conspiracy and reasonably foreseeable to that defendant—as opposed to the conspiracy as
a whole. Collins, 415 F.3d at 314.
Reviewing the instructions in the context of the overall charge, we conclude that
they fairly and accurately set forth the controlling law. United States v. Woods, 710 F.3d
*
Apprendi v. New Jersey, 530 U.S. 466 (2000).
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195, 207 (4th Cir. 2013) (the court considers the jury charge as a whole to determine
whether the instructions accurately stated the statutory elements). The charge definitively
stated that if the jury found that Hill was guilty of the conspiracy it then had to make a
finding on drug quantity in order to convict. Hill has not demonstrated that the challenged
instructions regarding elements of the offense and quantity usurped the jury’s role in
weighing the evidence against the proper burden of proof. The district court instructed the
jury several times that the Government must prove its case beyond a reasonable doubt. No
other burden of proof was mentioned. The court instructed the jury that it would have to
determine the drug quantity reasonably foreseeable to Hill by stating that “[if] your verdict
is guilty, you are instructed to determine the quantity of methamphetamine that the
Defendant conspired to possess with the intent to distribute.” In this trial, Hill was the only
defendant and the testimony about drug weight related only to the interactions with Hill.
Further, if the evidence “overwhelmingly establishe[s]” that the defendant was
personally responsible for the threshold quantity of drugs, and if his assertions at trial
“primarily focused on whether he committed the offenses and not on the drug quantities
reasonably foreseeable to him,” this court may decline to recognize a plain Collins error.
United States v. Foster, 507 F.3d 233, 252 (4th Cir. 2007). Here, the evidence was
overwhelming that Hill was responsible for 500 grams of more of methamphetamine. We
do not review the credibility of witnesses and assume the jury resolved all contradictions
in testimony in favor of the Government. United States v. Sun, 278 F.3d 302, 312 (4th Cir.
2002). Therefore there is no error to be recognized by the court.
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Next, Hill argues that the Government’s allegedly improper arguments during
closing statements rendered the trial unfair. He contends that the Government made three
improper references: an inference casting him as the devil, a statement that the witness who
set him up was now dead, and a statement that witness Billie Jo Fife had sex with him in
exchange for methamphetamine. With respect to these arguments, however, Hill did not
raise an objection in the district court. Therefore, we review only for plain error. See
United States v. Mitchell, 1 F.3d 235, 239 (4th Cir. 1993).
A prosecutor’s improper remarks during closing argument will mandate retrial only
if they “so infected the trial with unfairness as to make the resulting conviction a denial of
due process.” Id. at 240 (internal quotation marks omitted). This court considers six factors
in determining whether a prosecutor’s arguments are so prejudicial as to have deprived the
defendant of a fair trial:
(1) whether the government’s remarks misl[ed] the jury, (2) whether they
were extensive, (3) the strength of the evidence supporting conviction absent
the comments, (4) whether the government deliberately made the comments
to mislead the jury, (5) whether the defendant invited the comments, and (6)
the presence of a curative instruction.
United States v. Chong Lam, 677 F.3d 190, 197 (4th Cir. 2012).
We assume without deciding that the challenged remarks on appeal were improper.
However, the cumulative effect of improper remarks only mandate retrial if they “so infect
the trial with unfairness as to make the resulting conviction a denial of due process.”
Mitchell, 1 F.3d at 239. Considering the statements and evidence in light of Chong Lam,
we conclude that the Government’s remarks did not infect the trial with unfairness so as to
rise to a denial of due process and that any plain error need not be noticed.
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Finally, we review application of the U.S. Sentencing Guidelines Manual
§ 2D1.1(b)(1) (2015) enhancement for clear error. United States v. Manigan, 592 F.3d
621, 630–31 (4th Cir. 2010). In order for the enhancement to apply, “the Government must
prove by a preponderance of the evidence that the weapon was possessed in connection
with drug activity that was part of the same course of conduct or common scheme as the
offense of conviction.” Id. at 628–29 (internal quotation marks omitted). However, the
Government need not prove that possession of the firearm was “precisely concurrent” with
the criminal act. Id. at 629 (internal quotation marks omitted). “[P]roof of constructive
possession of the [firearm] is sufficient, and the Government is entitled to rely on
circumstantial evidence to carry its burden.” Id.; see USSG § 2D1.1 cmt. n.11(A)
(providing that enhancement should apply if weapon was present near illicit drugs “unless
it is clearly improbable that the weapon was connected with the offense”). The defendant
bears the burden of establishing such a clear improbability. United States v. Slade, 631
F.3d 185, 189 (4th Cir. 2011).
Hill cannot make this showing. The evidence at trial was that Ralph Stroud, a person
who had been trading pseudoephedrine for methamphetamine with Hill, approached Hill
at a gas station and Hill offered Stroud 28 grams of methamphetamine for $1500. Hill was
sitting in his truck and Stroud saw a handgun in between the seats of the truck. This court
has explained that “so long as a firearm’s location makes it readily available to protect
either the participants themselves during the commission of the illegal activity or the drugs
and cash involved in the drug business, there will be sufficient evidence to connect the
weapon to the offense conduct.” Manigan, 592 F.3d at 629 (alterations and internal
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quotation marks omitted). We conclude that the district court did not clearly err in applying
the enhancement. Further, as Hill admits, any error did not affect the advisory Guidelines
range.
Accordingly, we affirm the judgment. We dispense with oral argument because the
facts and legal contentions are adequately presented in the materials before this court and
argument would not aid the decisional process.
AFFIRMED
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