United States v. Hudspeth

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4277
KOREY RALEIGH HUDSPETH,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
J. Calvitt Clarke, Jr., Senior District Judge.
(CR-96-66-A)
Submitted: August 25, 1998
Decided: September 9, 1998
Before WILLIAMS and MOTZ, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
William B. Moffitt, ASBILL, JUNKIN & MOFFITT, CHTD., Wash-
ington, D.C., for Appellant. Helen F. Fahey, United States Attorney,
Jeffrey L. Berhold, Special Assistant United States Attorney, Alexan-
dria, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Korey Raleigh Hudspeth appeals his convictions for possession
with the intent to distribute cocaine base and distribution of cocaine
base in violation of 18 U.S.C. § 841(a)(1) (1994), for carrying a fire-
arm during and in relation to his drug trafficking offenses in violation
of 18 U.S.C. § 924(c) (1994), for witness tampering in violation of 18
U.S.C. § 1512(a)(1)(A), (C) (1994) and 18 U.S.C. § 2 (1994), for
using a facility in interstate commerce with the intent to commit a
crime of violence to further unlawful activity in violation of 18 U.S.C.
§ 1952 (1994) and § 2, for aiding and abetting another in interstate
travel with the intent to commit a crime of violence to further unlaw-
ful activity in violation of 18 U.S.C. § 1952 and § 2, causing another
to travel in interstate commerce with the intent that a murder for hire
be committed in violation of 18 U.S.C. § 1958 (1994), and for using
a facility in interstate commerce and causing another to travel in inter-
state commerce with the intent that a murder for hire be committed
in violation of § 1958. Finding no merit to his claims, we affirm.
On November 16, 1995, Darryl Nichols ("Nichols"), operating in
an undercover capacity, was standing on a street corner in Falls
Church, Virginia making preparations to make a controlled purchase
of crack cocaine when Nellie Downing ("Downing") approached him.
Nichols revealed that he was looking to buy $50 worth of crack
cocaine. Downing responded that she knew someone with crack and
took Nichols to a nearby apartment and introduced him to Hudspeth.
Although Hudspeth was suspicious that Nichols was a police offi-
cer he eventually sold him 0.226 grams of crack in exchange for $50.
During this transaction, Nichols saw what he believed to be a semi-
automatic handgun on Hudspeth's person. After the drug exchange,
Nichols left the apartment and gave an arrest signal to the undercover
arrest team and warned them that Hudspeth had a semiautomatic
2
handgun. Hudspeth then fled the scene and was eventually located
and arrested approximately thirty minutes later. Although the police
recovered Nichols' $50, another $740, a pager, and a magazine for a
nine millimeter handgun, they were unable to locate the gun.
Following his arrest, Hudspeth sought assistance in selling the
remaining crack he had in his apartment and killing Nichols so that
Nichols would be unable to testify against him in his upcoming trial.
A fellow prison inmate of Hudspeth's, Yusuf Salahuddin
("Salahuddin"), advised Hudspeth that his nephew, who was really an
undercover DEA agent, Clyde Shelley ("Shelley"), would be inter-
ested in buying crack from him and could kill Nichols.
Thereafter Shelley began receiving calls from Hudspeth from the
Fairfax County Detention Center. On several occasions, Hudspeth and
Shelley spoke over the phone from the jail and in person at the jail
regarding the murder. Hudspeth then gave Shelley a detailed descrip-
tion of Nichols and agreed to pay him $9000 to commit the murder.
After Shelley advised Hudspeth that Nichols had been killed, Huds-
peth continued to make arrangements to pay Shelley, but no payment
was made. Based on these events Hudspeth was convicted and sen-
tenced to 322 months' imprisonment.
On appeal Hudspeth asserts several insufficiency of evidence
claims. To sustain a conviction, this court must find substantial evi-
dence, when viewed in a light most favorable to the government, to
support it. See Glasser v. United States, 315 U.S. 60, 80 (1942). Cir-
cumstantial as well as direct evidence is considered, and the govern-
ment is given the benefit of all reasonable inferences from the facts
proven to those sought to be established. See United States v.
Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982).
Hudspeth's assertion that this court should reverse his conviction
for carrying a firearm during and in relation to his drug trafficking
offenses is unpersuasive. At trial Nichols testified that he saw Huds-
peth with a nine-millimeter handgun during negotiations and during
the completion of the drug deal in the apartment lobby. Members of
the arrest team corroborated this story and testified that they heard
Nichols give a warning about the gun at the end of the undercover
buy. Officers also found a magazine for a nine millimeter handgun in
3
the laundry room that Hudspeth used as a base of operations for his
drug business. Finally, Downing testified that she usually saw an
imprint of a gun in Hudspeth's pants during drug sales. We find that
this testimony was sufficient evidence from which a reasonable jury
could have found Hudspeth guilty of carrying a firearm during and in
relation to his drug related offenses in violation of § 924(c).
Hudspeth next contends that there was insufficient evidence to con-
clude that he attempted to kill Nichols with the intent to prevent him
from testifying against him at trial in violation of the Witness Tam-
pering Act under 18 U.S.C. § 1512(a)(1)(A), (C). Specifically Huds-
peth contends that he did not attempt to kill Nichols and that even
assuming he did, the proceeding was not an "official proceeding"
before a "judge of the United States" for the purposes of § 1512.
Section 1512 prohibits "attempts to kill another person, with intent
to . . . prevent the attendance or testimony of any person in an official
proceeding . . . or . . . prevent the communication by any person to a
. . . judge of the United States of information relating to the commis-
sion or possible commission of a Federal offense." 18 U.S.C. § 1512(1994). First, Hudspeth and Shelley formed an agreement to kill Nich-
ols. Furthermore, Hudspeth gave Shelley a detailed description of
Nichols and was persistent about calling Shelley and effectuating pay-
ment. Second, there was evidence adduced at trial that Hudspeth
knew that federal drug charges might be brought against him which
would be tried before a federal judge. See 18 U.S.C. § 1512(e) (1994)
("an official proceeding need not be pending or about to be instituted
at the time of the offense."). More importantly, however, federal
charges were brought and a federal trial did ensue. Accordingly, we
find that there was sufficient evidence that showed Hudspeth
attempted to kill Nichols to keep him from testifying and that there
was an "official proceeding" before a "judge of the United States" for
the purposes of § 1512.
Hudspeth's claim that there was insufficient evidence that his con-
duct gave rise to a Travel Act violation under § 1952 is also not con-
vincing. Specifically, Hudspeth argues that he committed no overt act
subsequent to his contacting and meeting Shelley that furthered his
drug trafficking venture. He further claims that he did not engage in
"unlawful activity" for the purposes of § 1952 and that the Govern-
4
ment failed to establish a sufficient federal nexus to warrant a convic-
tion under § 1952.
For the Government to convict Hudspeth under § 1952, it was
required to prove, beyond a reasonable doubt: (1) interstate travel, (2)
intent to promote ongoing unlawful activity, i.e., drug trafficking, and
(3) performance or attempted performance of an unlawful act. See
United States v. Gallo, 782 F.2d 1191, 1194 (4th Cir. 1986); United
States v. Schocket, 753 F.2d 336, 340-41 (4th Cir. 1985). We have
made clear that there must be some action taken after using the inter-
state facility to establish a § 1952 violation. See United States v.
Porter, 821 F.2d 968, 975 (4th Cir. 1987). The overt act requirement
can be satisfied by the performance or attempted performance of any
crime of violence to further any unlawful activity. See 18 U.S.C.
§ 1952(a)(2) (1994). Because the evidence at trial revealed that Huds-
peth made a series of interstate phone calls from the jail to Shelley
in Washington, D.C. and that he met with Shelley at the jail regarding
the murder scheme, there was sufficient evidence that Hudspeth used
the phone with the intent to commit a murder to further his drug traf-
ficking business.
We also find sufficient evidence that Hudspeth engaged in "unlaw-
ful activity" for the purposes of § 1952. Unlawful activity includes
"any business enterprise involving . . . narcotics or controlled sub-
stances." 18 U.S.C. § 1952(b)(1) (1994). This court has construed
"business enterprise" to mean "a continuous course of conduct." See
United States v. Corbin, 662 F.2d 1066, 1072 (4th Cir. 1981). Here,
the evidence at trial demonstrated that Hudspeth had been engaged in
a continuous course of dealing crack cocaine on a regular basis for at
least five months, and thus, Hudspeth had engaged in an "unlawful
activity."
Finally, the underlying business enterprise was interstate in nature
and there was a sufficient federal nexus to warrant a conviction under
the Travel Act. Hudspeth used the jail phone to make interstate phone
calls and caused Shelley to travel interstate for the purpose of plotting
and executing a scheme to kill the principal witness against him for
his drug offenses. See United States v. LeFaivre , 507 F.2d 1288, 1296
(4th Cir. 1974) (holding that the travel or use of facilities need not be
5
substantial). Hence the Government adequately established a violation
of the Travel Act.
Hudspeth next claims that he was erroneously convicted of using
and causing another to travel in interstate commerce with the intent
to commit a murder for hire under § 1958 because the required inter-
state nexus and federal action arose out of "mere happenstance."
Again, because the evidence at trial revealed that Hudspeth used the
interstate telephone service from the jail with the intent to have Shel-
ley murder Nichols, we hold that a federal action under § 1958 did not
arise out of "mere happenstance" and this claim is without merit. See
United States v. Coates, 949 F.2d 104, 106 (4th Cir. 1991) (citing
LeFaivre, 507 F.2d at 1288) (noting that the incidental nature of the
jurisdictional fact is essentially irrelevant to the jurisdictional ques-
tion)).
Hudspeth further suggests that there was insufficient evidence to
find that he intended to have Nichols murdered because he was a
chronic liar who never really intended that Nichols be murdered and
who never really intended to pay Shelley. On the contrary, the evi-
dence established that Hudspeth was completely aware that Shelley
intended to kill Nichols; in fact, Hudspeth, himself, made the arrange-
ments to have Nichols killed. Furthermore, the evidence revealed that
Nichols took the threat very seriously and never once considered
Hudspeth's threat to be frivolous in nature. Lastly, even when it
appeared that Nichols was killed, Hudspeth never recanted his intent
or his promise to pay Shelley. Consequently, we find this claim merit-
less.
Finally, Hudspeth's assertion that the sentence he received for pos-
session with intent to distribute cocaine base and distribution of
cocaine base in violation of § 841 was disproportionate to the crime
and therefore a violation of the Eight Amendment's prohibition
against cruel and unusual punishment is not convincing. Because this
issue was not raised in the district court, we review for plain error.
See United States v. Olano, 507 U.S. 725, 732-36 (1993).
Hudspeth contends that the district court erred in determining that
he was responsible for at least 119.8 grams of cocaine base. See U.S.
Sentencing Guidelines Manual § 1B1.3 (relevant conduct). However,
6
there was testimony that Hudspeth sold 200 grams of cocaine just five
months before he was arrested. Consequently, based on the nature of
the offense, the circumstances of the offense, and Hudspeth's criminal
history, the court found a sentencing range of 210 to 262 months and
sentenced him to 240 months' imprisonment for his§ 841 convic-
tions.
Because the sentence was within the sentencing guidelines' range
and Hudspeth claims no error in the application of the guidelines, the
court did not commit plain error and his sentence does not violate the
Eighth Amendment. See United States v. Jones, 18 F.3d 1145, 1151
(4th Cir. 1994); see also United States v. Francois, 889 F.2d 1341,
1343 (4th Cir. 1989) (finding that sentence within range provided by
the guidelines does not violate Eighth Amendment).
Accordingly, we affirm Hudspeth's convictions. 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