United States v. Demorius Anderson

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4777
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DEMORIUS LAMAR ANDERSON,
Defendant - Appellant.
No. 13-4916
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GARY MOUNTCASTLE, a/k/a Gary Montcastle, a/k/a Gary Riddick,
Defendant - Appellant.
Appeals from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., District Judge. (3:11-cr-00003-RJC-DSC-17; 3:11-cr-00003-
RJC-DSC-13)
Submitted: December 22, 2014 Decided: January 16, 2015
Before WILKINSON, DUNCAN, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Scott H. Gsell, LAW OFFICE OF SCOTT GSELL, Charlotte, North
Carolina; D. Baker McIntyre, III, Charlotte, North Carolina, for
Appellants. Anne M. Tompkins, United States Attorney, Amy E.
Ray, Assistant United States Attorney, Asheville, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
In these consolidated appeals, we consider several
assignments of error. Gary Mountcastle was tried by a jury and
convicted of conspiracy to distribute and to possess with intent
to distribute less than 500 grams of cocaine, in violation of 21
U.S.C. § 846 (2012). The jury convicted Demorius Lamar Anderson
of conspiracy to distribute and to possess with intent to
distribute marijuana, in violation of 21 U.S.C. § 846;
conspiracy to commit and attempted Hobbs Act robbery, in
violation of 18 U.S.C. § 1951(a) (2012); and a firearm offense,
in violation of 18 U.S.C. § 924(c) (2012). Following trial,
Mountcastle was sentenced to ninety months in prison, and
Anderson was sentenced to 451 months in prison.
On appeal, Anderson alleges that the trial court
improperly responded to a jury question during its
deliberations. Mountcastle challenges the district court’s
denial of his motions for acquittal pursuant to Fed. R. Crim. P.
29. Mountcastle also contests the district court’s findings at
sentencing that he was responsible for more than 500 grams of
cocaine and that his sentence was subject to an enhancement
based on obstruction of justice. We address these arguments in
turn. For the reasons that follow, we affirm the appellants’
convictions and sentences.
3
We review a district court’s response to a jury’s
question for an abuse of discretion. United States v. Burgess,
684 F.3d 445, 453 (4th Cir. 2012). “[T]he trial court must take
care, in responding to a jury question, not to encroach upon its
fact-finding power.” United States v. Cooper, 482 F.3d 658, 664
(4th Cir. 2007). “In responding to a jury’s request for
clarification on a charge, the district court’s duty is simply
to respond to the jury’s apparent source of confusion fairly and
accurately without creating prejudice.” United States v.
Foster, 507 F.3d 233, 244 (4th Cir. 2007) (alteration and
internal quotation marks omitted). “An error requires reversal
only if it is prejudicial in the context of the record as a
whole.” Id. Here, we conclude that the district court’s
response did not encroach on the province of the jury, nor was
the court’s response prejudicial to Anderson in the context of
the record as a whole.
We review de novo the denial of a Rule 29 motion for a
judgment of acquittal. United States v. Jaensch, 665 F.3d 83,
93 (4th Cir. 2011). A defendant challenging the sufficiency of
the evidence faces “a heavy burden.” United States v. McLean,
715 F.3d 129, 137 (4th Cir. 2013) (internal quotation marks
omitted). The jury verdict must be sustained if “there is
substantial evidence in the record, when viewed in the light
most favorable to the government, to support the conviction.”
4
Jaensch, 665 F.3d at 93 (internal quotation marks omitted).
“Substantial evidence is evidence that a reasonable finder of
fact could accept as adequate and sufficient to support a
conclusion of a defendant’s guilt beyond a reasonable doubt.”
Id. (alteration and internal quotation marks omitted).
Furthermore, “the jury, not the reviewing court, weighs the
credibility of the evidence and resolves any conflicts in the
evidence presented.” McLean, 715 F.3d at 137 (internal
quotation marks omitted). “Reversal for insufficient evidence
is reserved for the rare case where the prosecution’s failure is
clear.” United States v. Ashley, 606 F.3d 135, 138 (4th Cir.
2010) (internal quotation marks omitted).
To convict Mountcastle of conspiracy to distribute and
to possess with intent to distribute cocaine, the Government had
to prove the following essential elements: “(1) an agreement
between two or more persons to engage in conduct that violates a
federal drug law; (2) the defendant’s knowledge of the
conspiracy; and (3) the defendant’s knowing and voluntary
participation in the conspiracy.” United States v. Green, 599
F.3d 360, 367 (4th Cir. 2010). Having reviewed the record, we
conclude that Mountcastle’s conspiracy conviction was supported
by sufficient evidence.
Mountcastle next challenges the calculation of his
sentence. First, Mountcastle contends that the district court
5
erred in calculating the relevant drug quantity, maintaining
that the court was constrained for sentencing purposes by the
jury’s finding that he was responsible for less than 500 grams
of cocaine. This Court has squarely held that “beyond
establishing the maximum sentence, the jury’s drug-quantity
determination place[s] no constraint on the district court’s
authority to find facts relevant to sentencing.” United States
v. Young, 609 F.3d 348, 357 (4th Cir. 2010). Mountcastle
acknowledges that his claim is foreclosed by circuit precedent
and notes that he seeks to preserve the issue for possible en
banc or Supreme Court review. Bound by Young, we discern no
error with the district court’s drug quantity calculation.
Finally, Mountcastle challenges the district court’s
application of a sentencing enhancement for obstruction of
justice. The Guidelines provide for a two-level enhancement
when “the defendant willfully obstructed or impeded . . . the
administration of justice with respect to the . . . prosecution
. . . of the instant offense.” U.S. Sentencing Guidelines
Manual § 3C1.1 (2012). Examples of covered conduct include
committing perjury. Id. cmt. n.4(B).
The adjustment for perjury is not applicable merely
because the defendant testified and subsequently was convicted.
See United States v. Dunnigan, 507 U.S. 87, 95 (1993). Rather,
the sentencing court must find that the defendant gave false
6
testimony under oath “concerning a material matter with the
willful intent to provide false testimony, rather than as a
result of confusion, mistake, or faulty memory.” Id. at 94; see
United States v. Smith, 62 F.3d 641, 646-48 (4th Cir. 1995).
“In assessing whether a sentencing court properly
applied the Guidelines, we review the court’s factual findings
for clear error and its legal conclusions de novo.” United
States v. Osborne, 514 F.3d 377, 387 (4th Cir. 2008). Here, the
district court found that Mountcastle’s testimony was untruthful
when he asserted that he was merely a drug user and not a drug
dealer. The district court found each element of perjury and,
therefore, we conclude that the enhancement was not erroneous.
Finding the alleged errors to lack merit, we affirm
the judgments of the district court. 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
7