United States v. Norbury ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 06-30328
Plaintiff-Appellee, D.C. No.
v.  CR-05-00022-1-
JAMES VAUGHN NORBURY, CCL
Defendant-Appellant.
 OPINION
Appeal from the United States District Court
for the District of Montana
Charles C. Lovell, District Judge, Presiding
Argued and Submitted
February 7, 2007—Seattle, Washington
Filed June 25, 2007
Before: Robert R. Beezer, Raymond C. Fisher, and
Richard C. Tallman, Circuit Judges.
Opinion by Judge Beezer
7605
UNITED STATES v. NORBURY 7607
COUNSEL
Monte Jewell, Missoula, Montana, for the defendant-
appellant.
Joshua S. Van de Wetering, Assistant United States Attorney,
for the plaintiff-appellee.
OPINION
BEEZER, Circuit Judge:
Defendant James Vaughn Norbury appeals his conviction
and sentence for four methamphetamine-related counts. Nor-
7608 UNITED STATES v. NORBURY
bury contends that insufficient evidence supports his convic-
tion and that the district court improperly enhanced his sen-
tence under 21 U.S.C. § 841 based on a prior conviction.
We have jurisdiction pursuant to 18 U.S.C. § 3742 and 28
U.S.C. § 1291, and we affirm.
I
In October 2005, Norbury was charged with (1) conspiracy
to distribute methamphetamine, (2) conspiracy to possess
methamphetamine with intent to distribute, (3) attempted pos-
session of methamphetamine with intent to distribute and (4)
distribution of methamphetamine.
The case proceeded to trial in February 2006. The evidence
introduced by the government included testimony from sev-
eral cooperating witnesses and a detective from the Missouri
River Drug Task Force. Cooperating witness Tracey Reinke
testified that she often obtained methamphetamine from Nor-
bury. Reinke saw Norbury receive a dealer’s amount, which
is a pound or more, of methamphetamine from another dealer
on two occasions. Reinke further testified that sometimes
Norbury was “fronted” methamphetamine, which means he
did not have to pay the purchase price until he sold the
methamphetamine to others.
Cooperating witness Nesha Hoffman testified that she
received money from Norbury which she delivered to a
methamphetamine dealer on Norbury’s behalf. Cooperating
witness Christie Staudenmeyer testified that she received
small amounts of methamphetamine from Norbury numerous
times. On one occasion, she sold two pounds of methamphet-
amine to Norbury. Staudenmayer also saw Norbury buy the
drug from another dealer a few times and believed Norbury
was partially fronted the amount of drugs received.
Jody Seyler testified that she arranged to sell methamphet-
amine to a man named Tim Heick. At that time Seyler was
UNITED STATES v. NORBURY 7609
already cooperating with law enforcement agents, who moni-
tored the transaction. Seyler met Heick at an agreed upon
location, and Norbury was present. Norbury gave Seyler a bag
containing $19,000 in exchange for over a pound of metham-
phetamine. Norbury told Seyler that he could sell two to four
pounds of methamphetamine a week if she provided him with
that amount. Law enforcement videotaped the transaction, but
the tape did not have audio and the images were difficult to
see. During trial, Seyler identified the individuals portrayed
on the videotape and explained the events.
After the government rested, Norbury moved for a judg-
ment of acquittal based on insufficient evidence. The district
court denied the motion. The jury convicted Norbury on all
four counts. At the sentencing hearing on May 19, 2006, Nor-
bury objected to an enhanced mandatory minimum sentence
of 20 years imprisonment based on his 1989 felony state drug
conviction. The district court overruled Norbury’s objection
and imposed a sentence of 20 years imprisonment as to each
count of conviction, to be served concurrently. Norbury
timely appealed on May 19, 2006.
II
Norbury argues that the district court should have granted
his motion for acquittal because insufficient evidence sup-
ported his conviction. We review de novo a district court’s
decision to deny a motion for acquittal. United States v. Bha-
gat, 436 F.3d 1140, 1145 (9th Cir. 2006). Sufficient evidence
supports a conviction if, considering the evidence in the light
most favorable to the government, “any reasonable juror
could have found the essential elements of the offense beyond
a reasonable doubt.” Id. at 1148.
[1] Norbury contends that insufficient evidence supports
his conviction because the videotape of a drug transaction
introduced at trial lacked sound and had poor image quality.
Norbury’s argument ignores the voluminous testimony
7610 UNITED STATES v. NORBURY
against him by several witnesses, including Seyler who was
present at the recorded drug transaction. Based on the evi-
dence presented, a rational juror could have found Norbury
guilty of the crimes charged.1 The district court properly
denied Norbury’s motion for acquittal.
III
Norbury argues that the district court erred in enhancing his
sentence under 21 U.S.C. § 841 based on a prior conviction
because the conviction was later dismissed with prejudice by
the state court. The construction or interpretation of a statute
is a question of law that we review de novo.2 United States v.
Cabaccang, 332 F.3d 622, 624-25 (9th Cir. 2003) (en banc).
[2] Section 841 increases the punishment for a federal drug
offense if the crime occurs “after a prior conviction for a fel-
ony drug offense has become final.” 21 U.S.C.
§ 841(b)(1)(A)-(D). Whether a defendant’s prior state convic-
tion was a “conviction” within the meaning of a federal stat-
ute is a question of federal, not state, law unless Congress
1
Norbury also argues that he was prejudiced by the videotape even
though it allegedly did not support any elements of a crime. He asserts that
the tape “conveyed a veneer of credibility which the government witnesses
would have otherwise lacked.” His argument amounts to an evidentiary
objection to the tape’s admissibility. See Fed. R. Evid. 403 (relevant evi-
dence may be excluded if danger of unfair prejudice substantially out-
weighs probative value). The issue is not preserved on appeal, however,
because Norbury did not object to the tape’s admissibility at trial and has
not shown manifest injustice. See United States v. Archdale, 229 F.3d 861,
864-65 (9th Cir. 2000).
2
Norbury cites 21 U.S.C. § 851(c)(1) and asserts that the government
has the burden to establish a prior conviction beyond a reasonable doubt.
The government’s burden of proof under § 851 is irrelevant in this case.
Section 851(c)(1) requires the government to prove “any issue of fact”
when a defendant challenges the validity or underlying facts of a prior
conviction. The fact of Norbury’s prior conviction and subsequent dis-
missal are not in dispute. The issue before us is legal and involves whether
a dismissed conviction qualifies as a prior conviction under § 841.
UNITED STATES v. NORBURY 7611
provides otherwise. See Dickerson v. New Banner Inst., Inc.,
460 U.S. 103, 111-12 (1983), superseded in part by 18 U.S.C.
§ 921(a)(20). The Supreme Court addresses federal gun con-
trol statutes in Dickerson, but the Court’s rationale for apply-
ing federal law to the meaning of “conviction” applies equally
to federal drug statutes: “This makes for desirable national
uniformity unaffected by varying state laws, procedures, and
definitions of ‘conviction.’ ” 460 U.S. at 112.
[3] Three years after the Supreme Court’s Dickerson deci-
sion, Congress amended the gun control statutes to provide
that the term “conviction” for a firearm offense “shall be
determined in accordance with the law of the jurisdiction in
which the proceedings were held.” 18 U.S.C. § 921(a)(20). By
contrast, Congress did not amend the drug statutes to indicate
that the definition of “conviction” depends on anything other
than federal law. See 21 U.S.C. §§ 802 (definitions), 841. The
meaning of the term “conviction” in § 841 therefore remains
a question of federal law. See Dickerson, 460 U.S. at 111-12;
United States v. McAllister, 29 F.3d 1180, 1185 (7th Cir.
1994) (federal law still applies to meaning of “conviction” in
drug statutes even though Congress disapproved of applying
Dickerson to gun control statutes); United States v. Gomez, 24
F.3d 924, 930 (7th Cir. 1994) (language of § 841 does not
suggest that definition of “conviction” depends on state law).
[4] An expunged or dismissed state conviction qualifies as
a prior conviction if the expungement or dismissal does not
alter the legality of the conviction or does not represent that
the defendant was actually innocent of the crime. See Dicker-
son, 460 U.S. at 115. Our sister circuit courts that have
addressed the issue agree that a deferred, expunged or dis-
missed state conviction qualifies as a prior conviction under
§ 841. See, e.g., United States v. Cisneros, 112 F.3d 1272,
1280 (5th Cir. 1997) (involving deferred adjudication); United
States v. Mejias, 47 F.3d 401, 402 (11th Cir. 1995) (involving
nolo contendere plea and withheld adjudication); Gomez, 24
F.3d at 927-28 (involving expunged and dismissed convic-
7612 UNITED STATES v. NORBURY
tion); United States v. Meraz, 998 F.2d 182, 183 (3d Cir.
1993) (involving conviction’s dismissal with prejudice under
deferral statute); United States v. Campbell, 980 F.2d 245,
250 (4th Cir. 1992) (involving probation sentence under state
deferral statute).
[5] Norbury argues that a dismissal differs from expunge-
ment and alters the legality of a prior conviction by invalidat-
ing the underlying charges. We disagree. The legality of a
conviction does not depend upon the mechanics of state post-
conviction procedures, but rather involves the conviction’s
underlying lawfulness. See Dickerson, 460 U.S. at 115 (stat-
ing as examples that conviction’s legality may be affected by
actual innocence or trial error). Moreover, an exception for
dismissals could result in significantly different minimum
sentences for otherwise similarly situated defendants who
committed prior offenses in different states. See id. at 120
(mechanics of postconviction state actions “vary widely from
State to State”); United States v. Crowell, 374 F.3d 790, 792
(9th Cir. 2004) (recognizing that “ ‘expungement’ may mean
different things in different states”).
[6] Norbury asserts that the dismissal with prejudice of his
state conviction amounts to a determination that the crime
never occurred or that he was in fact innocent. The record
does not support Norbury’s assertion. The order to dismiss is
based on Norbury’s compliance “with the terms and condi-
tions of the April 5th, 1989, Sentence and Judgment in this
matter.” The dismissal neither alters the legality of the convic-
tion nor indicates that Norbury was actually innocent of the
crime. The district court properly concluded that Norbury’s
dismissed state conviction qualifies as a prior conviction
under 21 U.S.C. § 841.
AFFIRMED.