United States v. Joseph Lee Murphy

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-12381
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSEPH LEE MURPHY,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Alabama
D.C. Docket No. 1:21-cr-00140-KD-B-1
____________________
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2 Opinion of the Court 22-12381
Before WILLIAM PRYOR, Chief Judge, and NEWSOM and ANDERSON,
Circuit Judges.
PER CURIAM:
Joseph Lee Murphy appeals his convictions for conspiring to
possess and for possessing with intent to distribute marijuana,
21 U.S.C. §§ 841(a)(1), 846, and his sentence of 24 months of im-
prisonment. Murphy challenges the procedural and substantive
reasonableness of his sentence and argues that the district court
erred by admitting evidence of uncharged conduct without proper
notice. Fed. R. Evid. 404(b). We affirm.
A grand jury indicted Murphy for conspiring to possess and
for possessing with intent to distribute methamphetamine and ma-
rijuana, 21 U.S.C. §§ 841(a)(1) 846, between February 20 and July
28, 2021. During that time, Murphy was an inmate at the Mobile
County Jail, where his alleged criminal conduct occurred.
At trial, the government presented testimony from Officer
Monya Ward about a “shakedown” of cell number 1294 on June 7,
2021. Murphy was the last inmate to leave the cell. Before he did,
Officer Ward heard the toilet flushing repeatedly and Murphy say,
“F**k this s***t. They gonna find it anyway.” Officer Ward
searched the cell and found an “unusual amount of contraband” in
a “boat,” or an inmate bed, by the cell door. Specifically, Officer
Ward found a plastic bag in a hole that was cut in the middle of the
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22-12381 Opinion of the Court 3
mattress pad, a shank just “inches” away from the plastic bag, and
a little black pouch.
Sergeant Anita Nanton testified that the bag contained a sub-
stance that “smelt like weed” and “spice,” or synthetic marijuana.
Murphy objected to Sergeant Nanton calling the substance “spice”
without a drug analysis, but Sergeant Nanton clarified that she be-
lieved the substance to be “spice, the synthetic marijuana” based
on her experience as a sergeant at the jail.
Detective William Givens testified that the black pouch held
about 200 small baggies containing 38 grams of a substance that
tested positive for methamphetamine. Based on his 11 years of ex-
perience working with narcotics, Detective Givens identified the
other substance as marijuana, which weighed less than 15 grams.
The government sought to introduce testimony from April
Foreman, a criminal intelligence analyst, about a contraband drop
at the jail on January 10, 2021, one month before the period identi-
fied in the indictment, that led her to investigate Murphy. The gov-
ernment asserted that the testimony concerned conduct that was
inextricably intertwined with the charged conduct. Murphy ob-
jected that the testimony fell within Federal Rule of Evidence
404(b) because it was uncharged conduct of which he was not given
prior notice, although he acknowledged that an allegation of the
contraband drop was included in discovery. The district court over-
ruled Murphy’s objection and found that the evidence was part of
the course and conduct of the conspiracy.
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4 Opinion of the Court 22-12381
Foreman testified that she worked for Global Tel Link,
which contracted with the jail to provide telephone and visitation
services, and she was assigned to the Sheriff’s Office. After learning
that a bag containing marijuana and other items was found caught
in the barbed wire fence behind the jail on January 15, 2021, Fore-
man began to investigate. Foreman determined that someone at-
tempted the drop on January 11 and that the bag was intended for
someone in the 1200 block of the jail. Based on her review of tele-
phone calls made the day before the drop for the 1200 block of the
jail, Foreman discovered that Murphy participated in two phone
calls regarding a package on the day before the drop. Foreman also
listened to one of Murphy’s phone calls with another inmate in
which “flak” and “joe” were referenced. Foreman explained that
“flak” was a synthetic narcotic that was also called “flakka,” and
“joe” could refer to synthetic marijuana or “K2.” Foreman also ac-
cessed Murphy’s inmate account balance, which was over $4,000.
Amy White, a financial investigator for the Drug Enforce-
ment Administration, testified about her assessment of Murphy’s
inmate account. The opening balance of Murphy’s account was 34
cents, and beginning in April 2020, he received payments of about
$50 or $60 at a time from a depositor named “wife” and another
woman. But in January 2021, Murphy began receiving payments
from “random third-party individuals,” many of which were be-
tween $20 and $40 per transaction. Between April 2020 and July
2021, Murphy received $3,575 in deposits from third parties other
than the two women.
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22-12381 Opinion of the Court 5
The jury found Murphy guilty of conspiring to possess and
of possessing with intent to distribute marijuana, 21 U.S.C.
§§ 841(a)(1), 846, but not methamphetamine.
Murphy’s presentence investigation report provided a total
offense level of 32, a criminal history category of III, and a maxi-
mum sentence of 5 years of imprisonment for each count. Murphy
objected that his offense level incorrectly included the metham-
phetamine weight and that the total converted drug weight should
include only the marijuana, which was less than one kilogram. See
U.S.S.G. § 2D1.1(c)(17). Murphy also objected to a two-level en-
hancement for possessing a dangerous weapon because the jury
made no finding on that issue and another cell mate could have
possessed the shank. See id. § 2D1.1(b)(1).
The district court sustained Murphy’s objection to including
the methamphetamine. The district court ruled that, although
there was sufficient evidence to include the synthetic marijuana, it
could not do so because the government could not establish the
weight. The district court overruled Murphy’s objection to the
dangerous weapon enhancement because it was logical to con-
clude from the evidence and the jury verdict that Murphy was in
the trade of selling marijuana and that he possessed the shank to
protect his drugs. As a result, Murphy’s total offense level became
ten, which included a base offense level of six, id. § 2D1.1(c)(17), a
two-level enhancement for the dangerous weapon, id.
§ 2D1.1(b)(1), and a two-level enhancement because the offense in-
volved distributing controlled substances in a jail, id. § 2D1.1(b)(4).
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6 Opinion of the Court 22-12381
Murphy’s new guideline range was 10 to 16 months of imprison-
ment, but the district court varied upwards and sentenced Murphy
to 24 months of imprisonment to “take[] into consideration the
synthetic marijuana which we don’t have a calculation for.”
We reject Murphy’s argument that the district court abused
its discretion by admitting Foreman’s testimony about the contra-
band drop in January 2021. Rule 404(b) provides that “[e]vidence of
any other crime, wrong, or act is not admissible to prove a person’s
character in order to show that on a particular occasion the person
acted in accordance with the character.” Fed. R. Evid. 404(b)(1).
Rule 404(b) applies only to evidence of crimes and acts that are ex-
trinsic to the charged offense. See United States v. Saintil, 753 F.2d
984, 987 (11th Cir. 1985). Evidence of criminal activity other than
the charged offense is not extrinsic, and is outside of the scope of
Rule 404(b), when it is “an uncharged offense which arose out of
the same transaction or series of transactions as the charged of-
fense, [] necessary to complete the story of the crime, or [] inextri-
cably intertwined with the evidence regarding the charged of-
fense.” United States v. Edouard, 485 F.3d 1324, 1344 (11th Cir.
2007). Foreman testified that she began her investigation because
of the January contraband drop, which Murphy acknowledged was
an allegation that was included in discovery. Foreman’s investiga-
tion led her to discover Murphy and to monitor his communica-
tions and inmate account during the months leading up to the June
shakedown. These communications referred to “flakka” and “joe,”
both slang for synthetic drugs, and Murphy’s inmate account
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22-12381 Opinion of the Court 7
activity, beginning around January 2021, appeared to be consistent
with drug sales. Because Foreman’s testimony described how the
investigation into Murphy’s criminal conduct began and pro-
gressed over the months leading up to the shakedown, this testi-
mony fell outside the scope of Rule 404(b) and notice was not re-
quired. Id.We review the reasonableness of a sentence for abuse of dis-
cretion. Gall v. United States, 552 U.S. 38, 51 (2007). The district
court must “commit[] no significant procedural error, such as fail-
ing to calculate (or improperly calculating) the Guidelines range,
treating the Guidelines as mandatory, failing to consider the
§ 3553(a) factors, selecting a sentence based on clearly erroneous
facts, or failing to adequately explain the chosen sentence . . . .” Id.
We will disturb “the sentence if, but only if, we are left with the
definite and firm conviction that the district court committed a
clear error of judgment in weighing the § 3553(a) factors by arriving
at a sentence that lies outside the range of reasonable sentences dic-
tated by the facts of the case.” United States v. Irey, 612 F.3d 1160,
1189 (11th Cir. 2010) (en banc) (internal quotation marks omitted).
Murphy’s sentence is procedurally reasonable. The record
refutes his argument, which we review for plain error only, that no
reliable evidence established the identify of the synthetic mariju-
ana. See United States v. Nash, 438 F.3d 1302, 1304 (11th Cir. 2006).
The government is permitted to establish the identity of a con-
trolled substance using circumstantial evidence, including “lay ex-
perience based on familiarity through prior use, trading, or law
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8 Opinion of the Court 22-12381
enforcement.” United States v. Williams, 865 F.3d 1328, 1344 (11th
Cir. 2017). Sergeant Nanton testified that the substance was
“spice,” or synthetic marijuana, based on her familiarity with the
substance through her law enforcement work. Because her opinion
testimony identifying the substance as synthetic marijuana was ra-
tionally based on her perception and law enforcement experience,
the district court did not plainly err by relying on it. See id.; Nash,
438 F.3d at 1304.
Murphy argues that the district court also procedurally erred
by applying the dangerous weapon enhancement because “mere
presence” should not be sufficient to establish that he construc-
tively possessed the shank. We disagree. The proximity between
the weapon and drugs alone was sufficient for the government to
meet its initial burden of proving that Murphy possessed a danger-
ous weapon in connection with his drug trafficking activities. See
United States v. Carillo-Ayala, 713 F.3d 82, 91-92 & n.9 (11th Cir.
2013). The evidence established that the shank and the bag of ma-
rijuana were found in the same mattress and were just “inches”
from each other. The district court stated that the jury verdict and
evidence supported that Murphy was engaged in the trade of sell-
ing marijuana, and “having a shank to protect his drugs is logical.”
Murphy has not met his heavy burden of proving that this connec-
tion was “clearly improbable.” See id.; U.S.S.G. § 2D1.1(b)(1)
cmt. n.11(A).
Murphy’s sentence is substantively reasonable, too. Murphy
argues that the district court erred by varying upwards to hold him
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22-12381 Opinion of the Court 9
accountable for the shank because that was conduct covered by the
dangerous weapon enhancement. Although the district court
stated after pronouncing Murphy’s sentence that it was “holding
[Murphy] responsible for the dangerous weapon” and for other
conduct, the written statement of reasons issued by the district
court stated that it varied upwards only “[t]o account for unquan-
tified [s]ynthetic [m]arijuana.” So Murphy identifies no error.
We AFFIRM Murphy’s convictions and sentence.