United States v. Childress

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4120
ERIC CHILDRESS,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, Chief District Judge.
(CR-00-101)
Submitted: November 27, 2001
Decided: December 7, 2001
Before NIEMEYER, WILLIAMS, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Paul S. Rosenzweig, ROSENZWEIG LAW OFFICES, L.L.P., Wash-
ington, D.C., for Appellant. Paul J. McNulty, United States Attorney,
Gene Rossi, Assistant United States Attorney, Sonya Sacks, Special
Assistant United States Attorney, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. CHILDRESS
OPINION
PER CURIAM:
Eric Childress was convicted following a jury trial of conspiracy
to distribute fifty grams or more of cocaine base and to distribute
cocaine base within 1000 feet of a school, playground and public
housing. He was sentenced to 360 months imprisonment, and he
timely appealed. We affirm.
I.
Childress first contends that the evidence was insufficient to sup-
port the verdict that he conspired to distribute fifty grams or more of
cocaine base. He asserts that no reasonable jury could have found him
involved with large quantities of crack cocaine, as the only evidence
of large transactions came from the non-credible testimony of Deme-
trius Howard and Nicole Gunnells. These witnesses testified inter alia
that, from January 1998 to August 1998, Howard, Gunnells, and Chil-
dress traveled to New York to buy cocaine which they later either
cooked into crack or sold to other dealers who cooked it into crack.
The trips happened at least once every two weeks and each involved
at least an eighth of a kilogram of cocaine powder (125 grams). On
these trips, Childress would either drive, carry money, or carry drugs.
We review sufficiency of the evidence deferentially, sustaining the
verdict if the evidence, when viewed in the light most favorable to the
Government, is such that a rational trier of fact could find guilt
beyond a reasonable doubt. Glasser v. United States, 315 U.S. 60, 80
(1942). In addition, credibility determinations are solely within the
jury’s province and are not subject to appellate review. United States
v. Burgos, 94 F.3d 849, 863 (4th Cir. 1996) (en banc).
Childress’ contention that the evidence was insufficient is merely
an assertion that Howard and Gunnells were not credible. Because we
do not review the credibility of the witnesses and because the testi-
mony of Howard and Gunnells indisputably established that Childress
was involved with over 50 grams of cocaine base, Childress’ argu-
ment fails.
UNITED STATES v. CHILDRESS 3
II.
Next, Childress argues that the jury instruction concerning the term
"playground" was erroneous as it failed to outline the statutory defini-
tion of a playground. See 21 U.S.C. § 860(e)(1) (1994). Because Chil-
dress failed to object to the instruction given by the district court, we
review for plain error. Fed. R. Crim. P. 52(b); United States v. Olano,
507 U.S. 725, 731-32 (1993). In order to establish authority to notice
an error not preserved by a timely objection, Childress must show that
an error occurred, that the error was plain, and that the error affected
his substantial rights. Olano, 507 U.S. at 732. Even if Childress can
satisfy these requirements, correction of the error remains within the
sound discretion of this court, and such discretion should not be exer-
cised unless the error "seriously affect[s] the fairness, integrity or
public reputation of judicial proceedings." Id.The Government concedes that there was an error in the jury
instruction and that the error was plain. Therefore, Childress must
next establish that the error affected his substantial rights, i.e. that it
was prejudicial. United States v. Hastings, 134 F.3d 235, 240 (4th Cir.
1998). He contends that, under Yates v. United States, 354 U.S. 298(1957), because we cannot determine whether the jury’s verdict rested
on a determination as to proximity to a playground pursuant to the
erroneous instruction, the verdict of guilty on this goal of the conspir-
acy must be reversed.1 Under Yates, where a court submits a case to
a jury on two or more alternate theories, one of which was the subject
of an erroneous instruction, and it is impossible to discern the basis
on which the jury actually rested its verdict, reversal is required. Id.
at 311-12.
However, after Yates, we determined that, where there has been no
timely objection, it is not enough for an appellant to establish that it
is impossible to tell whether the verdict rested solely on the misin-
struction. Instead, an appellant must affirmatively demonstrate that
1
Childress also contends that the evidence was insufficient to support
his conviction with reference to a "playground," even if the jury instruc-
tions had been proper, because there was no evidence that the playground
at issue was open to the public or that it contained permanent apparatus.
The Government does not dispute this contention.
4 UNITED STATES v. CHILDRESS
the erroneous instruction resulted in his conviction. Hastings, 134
F.3d at 243-44. Childress cannot satisfy this burden. He does not chal-
lenge that testimony at trial that members of the conspiracy dealt
drugs within 1000 feet of a school and public housing. Given this sub-
stantial and uncontroverted evidence, Childress is unable to show that
the jury’s verdict rested on the proximity of a playground. Thus, we
find that the district court’s erroneous jury instruction does not war-
rant a reversal of his conviction.
III.
At trial, the district court admitted, over objection, Childress’ tax
records for the years 1993-1998. The records were certified as authen-
tic transcripts of computer records by the IRS, but there was no fur-
ther foundation laid for the admissibility of the records. Childress
contends that this was prejudicial error. However, official IRS docu-
ments, even if generated by a computer, are admissible as public
records under Federal Rule of Evidence 803(8). United States v.
Hughes, 953 F.2d 531, 540 (9th Cir. 1992). Accordingly, Childress’
claim is meritless.
IV.
Relying on Apprendi v. New Jersey, 530 U.S. 466 (2000), Chil-
dress next argues that the district court erred in sentencing him based
on 1.5 kilograms of crack cocaine when the jury only found beyond
a reasonable doubt that he was involved with more than 50 grams.
However, Apprendi does not apply to a judge’s exercise of sentencing
discretion within a statutory range, so long as a defendant’s sentence
is not set beyond the maximum term specified in the substantive stat-
ute. United States v. Kinter, 235 F.3d 192 (4th Cir. 2000), cert.
denied, ___ U.S. ___, 69 U.S.L.W. 3618 (U.S. Mar. 19, 2001) (No.
00-8591). The maximum statutory sentence for Childress’ crime is
life imprisonment. See 21 U.S.C.A. § 841(b)(1)(A) (West 1999 &
Supp. 2001). Therefore, pursuant to Kinter,2 Childress’ sentence does
not offend Apprendi.
2
Childress attempts to overcome Kinter by arguing that (1) the jury’s
express finding of 50 grams limited the district court’s discretion to find
UNITED STATES v. CHILDRESS 5
V.
Finally, Childress challenges the district court’s calculation that he
was responsible for 1.5 kilograms of crack cocaine. Childress did not
object to the district court’s determination at the sentencing hearing,
and thus, he waived his right to raise the issue on appeal absent plain
error. United States v. Ford, 88 F.3d 1350, 1355 (4th Cir. 1996). A
review of the record reveals no error. Besides the sufficient testimony
of Howard and Gunnells described above, at least five other witnesses
testified to buying cocaine in varying amounts at different times from
Childress. The district court heard the testimony at trial and credited
it, as did the presentence report; absent an objection, the court was not
required to make any further specific findings, and we will not disturb
the credibility determinations of the district court. Accordingly, this
claim is without merit.
Based on the foregoing, we affirm Childress’ conviction and sen-
tence. 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
a greater amount and (2) Kinter was wrongly decided. We find that the
jury’s finding that Childress was involved with over 50 grams of crack
cocaine permitted a finding that Childress was responsible for substan-
tially more crack cocaine. Further, this panel cannot overrule the decision
of a prior panel. See Brubaker v. City of Richmond, 943 F.2d 1363, 1381-
82 (4th Cir. 1991).