United States v. James Morgan ( 2020 )

Case: 19-40977 Document: 00515553131 Page: 1 Date Filed: 09/04/2020
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
September 4, 2020
No. 19-40977
Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
James L. Morgan,
Defendant—Appellant.
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 5:17-CR-27-2
Before Barksdale, Graves, and Oldham, Circuit Judges.
Per Curiam:*
James L. Morgan appeals his conviction and sentence for possessing,
with the intent to distribute, five to less than 50 grams of actual
methamphetamine, in violation of 21 U.S.C. § 841(a)(1), as well as his
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should
not be published and is not precedent except under the limited circumstances set forth in
5TH CIR. R. 47.5.4.
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No. 19-40977
conviction for possessing a firearm after a felony conviction, in violation of
18 U.S.C. § 922(g)(1). Morgan contends: the evidence was insufficient to
support his convictions; the district court abused its discretion in giving the
jury an Allen charge; and the court violated United States v. Booker, 543 U.S.
220 (2005), in making its sentencing determination on the drug quantity for
his drug-distribution conviction which is greater than that found by the jury
in its special verdict form.
Morgan preserved his sufficiency-of-the-evidence challenges by
seeking judgment of acquittal following the Government’s conclusion of its
case, which constituted the close of all the evidence. See United States v.
Resio-Trejo, 45 F.3d 907, 910 n.6 (5th Cir. 1995). Preserved sufficiency-of-
the-evidence challenges are reviewed de novo and the verdict upheld if a
reasonable trier of fact could have found the evidence established guilt
beyond a reasonable doubt. See United States v. Alaniz, 726 F.3d 586, 600–
01 (5th Cir. 2013). Our court “view[s] the evidence in the light most
favorable to the prosecution” and defers to factual determinations made by
the trier of fact. United States v. Meza, 701 F.3d 411, 418 (5th Cir. 2012). In
short, if any rational juror could have found Morgan guilty, the conviction is
affirmed.
For each of his convictions, Morgan challenges only the element of
knowing possession. Each challenge fails.
When viewed in the requisite light most favorable to the Government,
the evidence provided a substantial basis for a reasonable juror to determine
beyond a reasonable doubt that Morgan acted knowingly in constructively
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possessing both the methamphetamine and the firearm hidden in the vehicle
he was driving. See Alaniz, 726 F.3d at 600–01 (holding court reviews
sufficiency-of-the-evidence challenges by examining all evidence “in the
light most favorable to the government”); see also United States v. Mudd, 685
F.3d 473, 477–78 (5th Cir. 2012) (holding constructive possession may be
established by circumstantial evidence); United States v. Mendoza, 226 F.3d
340, 345–46 (5th Cir. 2000) (holding constructive possession is proper when
inferred by jury from defendant’s presence at scene, conflicting stories, or
implausible stories).
Morgan’s nervousness, conflicting statements, implausible stories,
flight from the scene on foot, and the unconcealed heroin and digital scales
found on the driver’s side of the vehicle he was driving support a finding of
Morgan’s guilty knowledge regarding the methamphetamine and the firearm
hidden in the vehicle. See Mudd, 685 F.3d at 477–78 (“Inconsistent
statements and implausible explanations are among the behaviors previously
recognized in this circuit as circumstantial evidence of guilty knowledge.”);
United States v. Templeton, 624 F.3d 215, 225 (5th Cir. 2010); Mendoza, 226
F.3d at 345.
There is likewise no merit to Morgan’s preserved claim that
circumstances surrounding the Allen charge were coercive. See United States
v. Andaverde-Tiñoco, 741 F.3d 509, 515 (5th Cir. 2013). Allen charges are
reviewed for abuse of discretion. Id. Along that line, our court’s inquiry asks
“whether: (1) any semantic deviation from approved Allen-charge language
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was so prejudicial that it requires reversal and (2) the circumstances
surrounding the use of the charge were coercive”. Id.
Considering the totality of the circumstances, the court did not abuse
its discretion by urging the jury to continue deliberating in an effort to reach
a unanimous verdict. See United States v. Eghobor, 812 F.3d 352, 359 (5th Cir.
2015); Andaverde-Tiñoco, 741 F.3d at 515, 517–18. Significantly, the Allen
charge was not given prematurely because, after it was given, the jury was
allowed to go home for the night before resuming its deliberations, and there
was not an unduly short time lapse between the jury’s resumption of
deliberations and its decision. See Eghobor, 812 F.3d at 359 (describing factors
that weigh against finding coercion); Andaverde-Tiñoco, 741 F.3d at 515, 517–
18.
Finally, Morgan contends that the court violated Booker by sentencing
him on the drug-distribution count based on a drug quantity that exceeded
the jury’s determination. He asserts that he can only be sentenced based on
the amount for which he was convicted, between five and 50 grams as found
by the jury in its special verdict form, and not the alternative greater amount
in the form, 78.22 grams, which was not proven beyond a reasonable doubt.
Morgan also contends that using the larger amount raises constitutional due-
process concerns.
Even after Booker, “a district court may sentence . . . defendant on
facts not established by either a guilty plea or jury verdict, as long as the
conduct for which . . . defendant was [not found liable] has been proven by a
preponderance of the evidence.” United States v. Valles, 484 F.3d 745, 760
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(5th Cir. 2007). The district court may adopt facts in the Pre-Sentence
Investigation Report (PSR) if they are proven by a preponderance of the
evidence. Id. at 759. Factual findings during sentencing are reviewed for
clear error and reversed only if our court has a “definite and firm conviction
that a mistake has been made”. Id. at 759. Thus, our court reviews for clear
error the district court’s adoption of the PSR and use of its facts.
The court did not violate Booker in determining the relevant drug
quantity was larger than that found by the jury in its special verdict form. See
United States v. Jackson, 596 F.3d 236, 243–44 (5th Cir. 2010) (affirming
sentence based in part on amount of methamphetamine greater than amount
for which the jury convicted defendant). Among other bases for there being
no error, Morgan’s sentence is within the Guidelines sentencing range for
the amounts of actual methamphetamine on which he was convicted. And
assuming Morgan preserved the constitutional challenge, it also lacks merit.
AFFIRMED.
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