United States v. Suthar

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4508
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
NEAL SUTHAR,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Lacy H. Thornburg,
District Judge. (1:05-cr-00204-ALL)
Submitted: January 26, 2007 Decided: March 9, 2007
Before WILKINSON and TRAXLER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Andrew B. Banzhoff, DEVEREUX & BANZHOFF, PLLC, Asheville, North
Carolina, for Appellant. Gretchen C. F. Shappert, United States
Attorney, Thomas Cullen, Assistant United States Attorney,
Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Neal Suthar appeals his jury conviction of one count of
distribution of chemicals used to manufacture methamphetamine in
violation of 18 U.S.C. § 843(a)(7) (2000), and his resulting
sentence of twelve months and one day in prison. Suthar claims the
district court: (I) erred in denying his Fed. R. Civ. P. 29 motion
based on insufficient evidence; (ii) erred in admitting the
testimony of the Government’s expert witness; (iii) incorrectly
calculated his guidelines range pursuant to U. S. Sentencing
Guidelines Manual ("USSG") § 2D1.12 (2005); and (iv) violated the
Sixth Amendment in sentencing him. Finding no error, we affirm.
Suthar first claims the district court erred in denying
his motion for judgment of acquittal because the evidence was
insufficient to support his conviction. This court reviews the
denial of a Rule 29 motion de novo. United States v. Alerre, 430
F.3d 681, 693 (4th Cir. 2005). When, as here, the motion was based
on a claim of insufficient evidence, "[t]he verdict of a jury must
be sustained if there is substantial evidence, taking the view most
favorable to the Government, to support it." Glasser v. United
States, 315 U.S. 60, 80 (1942). This court "ha[s] defined
‘substantial evidence' as 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." Alerre, 430 F.3d
at 693 (internal citation omitted).
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This court "must consider circumstantial as well as
direct evidence, and allow the government the benefit of all
reasonable inferences from the facts proven to those sought to be
established." United States v. Tresvant, 677 F.2d 1018, 1021 (4th
Cir. 1982). This court "may not weigh the evidence or review the
credibility of the witnesses." United States v. Wilson, 118 F.3d
228, 234 (4th Cir. 1997). If evidence "supports different,
reasonable interpretations, the jury decides which interpretation
to believe." United States v. Murphy, 35 F.3d 143, 148 (4th Cir.
1994).
We conclude the evidence was sufficient to establish
Suthar distributed chemicals used to manufacture methamphetamine.
To convict Suthar under § 843(a)(7), the Government was required to
prove Suthar: (1) knowingly or intentionally distributed a
chemical, product, or material which may be used to manufacture a
controlled substance or listed chemical and (2) acted knowing,
intending, or having reasonable cause to believe that the chemical
would be used to manufacture a controlled substance or listed
chemical. See 21 U.S.C. § 843(a)(7).
DEA agents testified Suthar was informed that matches,
hydrogen peroxide, and Sudafed could be used in the methamphetamine
manufacturing process and to be on the lookout for suspicious
activity of individuals seeking to purchase those items. The
Government's witnesses also testified Suthar admitted he was aware
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of the methamphetamine problem and agreed to report any suspicious
behavior. Nevertheless, Suthar sold hydrogen peroxide and large
quantities of matches to Waters, and agreed to try to secure
Sudafed for him, as well. Most compelling, the Government produced
audio and visual recordings of Suthar during his interactions with
Waters in which Waters informed Suthar that he needed the product
to make "batches" and needed the product "bad."
Although Suthar testified he had no knowledge the matches
or peroxide could be used to manufacture methamphetamine or that
Waters intended to use the products to manufacture methamphetamine,
the jury's disregard of this testimony was a credibility
determination that should not be disturbed on appeal. See Wilson,
118 F.3d at 234. Accordingly, we conclude the district court did
not err in denying Suthar's Rule 29 motion.
Suthar next claims the district court erred by overruling
his objection to the Government expert witness's testimony
regarding the amount of red phosphorus contained in a matchbook
striker plate because the testimony contained inadmissible hearsay.
Suthar also claims the district court erred in refusing to strike
the expert's testimony from the record because he was not placed on
notice of the witness's testimony pursuant to Fed. R. Crim. P. 16.
Suthar's arguments are meritless.
We review the district court’s admission or exclusion of
evidence for abuse of discretion. See United States v. Young, 248
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F.3d 260, 266 (4th Cir. 2001). We also review decisions regarding
compliance with Rule 16 for abuse of discretion. Id. at 269. This
court will find abuse of discretion only if the district court's
evidentiary ruling was arbitrary or irrational. See United States
v. Achiekwelu, 112 F.3d 747, 753 (4th Cir. 1997).
Suthar claims the district court should have sustained
his general objection to a question by the Government regarding the
expert contacting the match manufacturer because the expert’s
answer contained inadmissible hearsay. The question to which
Suthar's counsel objected, however, was not a question seeking to
elicit inadmissible hearsay. Although the witness continued to
testify regarding the information provided him by the match
manufacturer, Suthar's counsel did not timely object to his
response containing the inadmissible hearsay or timely move to have
the testimony stricken from the record. Accordingly, we conclude
Suthar has not preserved this issue for appeal. See United States
v. Perkins, 470 F.3d 150, 157 n.10 (4th Cir. 2006) ("[T]he
objecting party [must] object with that reasonable degree of
specificity which would have adequately apprised the trial court of
the true basis for his objection.") (citing to United States v.
Parodi, 703 F.2d 768, 783 (4th Cir. 1983)).
We also conclude the district court did not err in
refusing to strike the Government's expert witness testimony
because the Government failed to disclose his testimony pursuant to
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Fed. R. Crim. P. 16. Rule 16(a)(1)(G) requires the government
furnish, upon the defendant's request, a written summary of any
expert testimony that the government intends to use under Fed. R.
Evid. 702, 703, or 705 during its case-in-chief at trial. The
summary must describe the witness's opinions, the bases and reasons
for those opinions, and the witness's qualifications.
The decision whether to impose a sanction for a violation
of Rule 16(a)(1)(G) rests within the district court's discretion.
See Fed. R. Crim. P. 16(d)(2) ("If . . . a party has failed to
comply with this rule, the court may order such party to permit the
discovery or inspection, grant a continuance, or prohibit the party
from introducing evidence not disclosed . . . ."); United States v.
Hastings, 126 F.3d 310, 317 (4th Cir. 1997) ("In determining a
suitable and effective sanction, a court must weigh the reasons for
the government's delay and whether it acted intentionally or in bad
faith; the degree of prejudice, if any, suffered by the defendant;
and whether any less severe sanction will remedy the prejudice and
the wrongdoing of the government.").
The sanction of exclusion of testimony, however, "is
almost never imposed" absent a constitutional violation or
statutory authority for the exclusion. United States v. Charley,
189 F.3d 1251, 1262 (10th Cir. 1999). Even when there has been an
abuse of discretion under Rule 16, reversal is inappropriate unless
the defendant establishes prejudice by demonstrating that it is
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likely that had the government complied with the discovery rule
(not had the evidence been suppressed), the verdict would have been
different. See United States v. Chastain, 198 F.3d 1338, 1348
(11th Cir. 1999).
Assuming without deciding the Government's failure to
disclose a summary of its expert testimony violated the
requirements of Rule 16, we conclude Suthar was not prejudiced by
this failure. Suthar had an opportunity to cross-examine the
Government's expert witness. During this cross-examination,
defense counsel elicited that the expert witness did not conduct a
test on the matchbooks to determine if they actually contained red
phosphorus. In any event, the amount of red phosphorus contained
in the striker plates of the matchbooks sold by Suthar was not an
issue at trial. The Government only had to prove Suthar knowingly
or intentionally distributed the matches, which could be used to
manufacture methamphetamine, and that he acted knowing, intending,
or having reasonable cause to believe the matches would be used to
manufacture methamphetamine. See 21 U.S.C. § 843(a)(7).
The Government produced ample evidence Suthar had reason
to believe the matches he sold could and would be used to
manufacture methamphetamine, especially given the quantity of
matches purchased, the other items inquired about by Waters and
Waters' comments regarding making a "batch." Most important,
Suthar not only sold an unusually large quantity of matches to
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Waters, but he also sold him hydrogen peroxide, another ingredient
used to manufacture methamphetamine. Because there was substantial
evidence Suthar sold product that could be used in the manufacture
of methamphetamine, and since the Government's expert witness's
testimony was limited and somewhat irrelevant, we conclude that,
even had the Government provided a summary of the expert witness's
testimony prior to trial, the verdict would not have been
different.
Suthar also raises several challenges to his sentence.
Suthar first claims his sentence was unreasonable because in
calculating his guidelines range, the district court followed the
recommendation of the presentence investigation report (“PSR”) and
applied the greater offense level under USSG § 2D1.12. Suthar
contends that because the jury never indicated it found him guilty
of knowing or believing the matches he sold to Waters would be used
to manufacture a controlled substance, the lesser base offense
level of nine provided in § 2D1.12 should have been applied. See
USSG § 2D1.12(a)(2) (providing for a base offense level of nine if
defendant only had "reasonable cause to believe" the product he
sold would be used to manufacture a controlled substance).
Accordingly, Suthar claims the district court's decision to follow
the PSR violates United States v. Booker, 543 U.S. 220 (2005).
Because Suthar objected to the PSR and objected at
sentencing to the district court's application of the greater base
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offense level, our review is de novo. See United States v.
Mackins, 315 F.3d 399, 405 (4th Cir. 2003). We conclude the
district court did not err in sentencing Suthar under the greater
offense level provided by § 2D1.12.
After Booker, this court will affirm a sentence imposed
by the district court as long as it is within the statutorily
prescribed range and reasonable. See United States v. Hughes, 401
F.3d 540, 547 (4th Cir. 2005). A sentence may be unreasonable for
both substantive and procedural reasons. See United States v.
Moreland, 437 F.3d 424, 433 (4th Cir.), cert. denied, 126 S. Ct.
2054 (2006). If a "sentence is based on an error in construing or
applying the Guidelines, it will be found unreasonable and
vacated." United States v. Green, 436 F.3d 449, 457 (4th Cir.),
cert. denied, 126 S. Ct. 2309 (2006). If a sentence is the product
of a proper guidelines application and consideration of the factors
set forth in 18 U.S.C. § 3553(a), the sentence is entitled to a
presumption of reasonableness. See Moreland, 437 F.3d at 432.
In considering whether a sentence is unreasonable, this
court reviews the district court's factual findings for clear error
and its legal conclusions de novo. See United States v. Hampton,
441 F.3d 284, 287 (4th Cir. 2006). A sentencing court treating the
guidelines as advisory continues to make factual findings
concerning sentencing factors by a preponderance of the evidence.
See United States v. Morris, 429 F.3d 65, 72 (4th Cir. 2005), cert.
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denied, 127 S. Ct. 121 (2006). We conclude Suthar's sentence is
reasonable.
Although the district court did not explicitly state that
it found Suthar actually knew the matches he sold would be used to
manufacture a controlled substance, because the district court
adopted the PSR calculations as correct, the district court
inherently adopted the findings in the PSR that applied the greater
base offense level under § 2D1.12. We conclude there was
sufficient evidence from which the district court could infer the
Government established Suthar possessed actual knowledge that the
matches he sold would be used to manufacture a controlled
substance. Finally, we note the district court, after considering
the § 3553(a) factors, deviated below the guidelines range provided
in the PSR and sentenced Suthar to twelve months and one day, even
though the PSR’s guidelines range was fifteen to twenty-one months.
Based on the foregoing, we conclude the district court did not err
in applying the greater base offense level provided for in the PSR
and that Suthar's sentence is reasonable.
Suthar next argues this court, by virtue of its decision
in Green, 436 F.3d at 457, has adopted a "presumptive guidelines
system" of sentencing that operates as a de facto mandatory system
in violation of Booker and the Sixth Amendment since the court has
"continually" overruled sentences outside the guidelines range.
Suthar also argues this de facto mandatory sentencing system
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violated his Sixth Amendment right to a trial by jury because he
was sentenced based upon facts contained in the PSR and found by
the district court by a preponderance of the evidence, rather than
facts found by a jury beyond a reasonable doubt. Suthar's
arguments are meritless.
First, we decline Suthar's invitation to revisit this
court's holding in Green on the grounds it has created a de facto
mandatory sentencing scheme. See United States v. Guglielmi, 819
F.2d 451, 457 (4th Cir. 1987) (holding that only an en banc court,
not a subsequent panel, has authority to overturn a previous
panel's published decision).
We also conclude Suthar's right to a jury trial was not
violated because the district court made factual findings at
sentencing. A district court has authority "to exercise broad
discretion in imposing a sentence within a statutory range. . . .
[f]or when a trial judge exercises his discretion to select a
specific sentence within a defined range, the defendant has no
right to a jury determination of the facts that the judge deems
relevant." Booker, 543 U.S. at 233; see also Green, 436 F.3d at
455 (holding that a district court "must make factual findings as
appropriate or necessary to carry out its sentencing function").
Because we find the district court did not err in adopting the
PSR's application of a greater base offense level for the purpose
of calculating Suthar's guidelines range, and especially since,
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after considering the § 3553(a) factors, sentenced Suthar below the
guidelines range, we conclude Suthar was not sentenced in violation
of Booker or the Sixth Amendment.
Accordingly, we affirm Suthar’s conviction and sentence.
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
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