United States v. Everhart

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-5124
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RICKY EUGENE EVERHART, a/k/a Red,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L. Voorhees,
District Judge. (CR-03-34)
Submitted: December 28, 2005 Decided: February 7, 2006
Before MICHAEL and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
Mark P. Foster, Jr., NIXON, PARK, GRONQUIST & FOSTER, P.L.L.C.,
Charlotte, North Carolina, for Appellant. Gretchen C. F. Shappert,
United States Attorney, Keith Cave, Assistant United States
Attorney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Ricky Eugene Everhart was convicted by a jury of
conspiracy to possess with intent to distribute a quantity of
cocaine base, in violation of 21 U.S.C. §§ 841, 846 (2000), and two
counts of possession with intent to distribute cocaine base, in
violation of 21 U.S.C. § 841. The district court sentenced
Everhart to 360 months of imprisonment, noting an alternative
sentence of 180 months under United States v. Hammoud, 381 F.3d 316(4th Cir. 2004) (en banc), vacated by 125 S. Ct. 1051 (2005). On
appeal, Everhart argues that (1) the district court abused its
discretion in admitting into evidence duplicate compact disc (“CD”)
recordings of microcassette audio recordings pursuant to Fed. R.
Evid. 1003; (2) the district court erred in denying his motion for
judgment of acquittal based on sufficiency of the evidence; and (3)
his sentence violates United States v. Booker, 125 S. Ct. 738(2005), and he is therefore entitled to resentencing. For the
reasons that follow, we affirm Everhart’s convictions, vacate his
sentence, and remand for resentencing.
Everhart first argues on appeal that the court abused its
discretion in admitting into evidence duplicate CD recordings under
Federal Rule of Evidence 1003. The standard of review for the
admission of a tape recording is abuse of discretion. See United
States v. Capers, 61 F.3d 1100, 1106 (4th Cir. 1995). This court
will not find error “unless the foundation for admission is clearly
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insufficient to insure the accuracy of the recording.” Id. (citing
United States v. Clark, 986 F.2d 65, 69 (4th Cir. 1993)). It is a
jury question whether the evidence admitted is what its proponents
claim it to be. Id. (citing United States v. Branch, 970 F.2d
1368, 1372 (4th Cir. 1992)). “The proponent of an audio recording
must show that the recording was sufficiently authentic to be
admitted into evidence.” United States v. Wilson, 115 F.3d 1185,
1188-89 (4th Cir. 1997). “The district court has wide latitude in
determining whether or not the proponent of a tape recording has
adequately laid the foundation from which a jury could reasonably
evaluate the accuracy, the validity, and the credibility of the
contents of the recording.” Id. at 1189. Because the Government
established a sufficient foundation for the duplicate recordings,
and Everhart did not raise a “genuine question” to the authenticity
of the original, we find that the district court did not abuse its
discretion in admitting the duplicate recordings.
Next, Everhart argues that the district court erred in
denying his motion for judgment of acquittal. Specifically, he
argues on appeal that the evidence was insufficient to sustain his
convictions. This court reviews the district court’s decision to
deny a motion for judgment of acquittal de novo. United States v.
Gallimore, 247 F.3d 134, 136 (4th Cir. 2001). If the motion was
based on insufficiency of the evidence, the verdict must be
sustained if there is substantial evidence, taking the view most
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favorable to the Government, to support it. Glasser v. United
States, 315 U.S. 60, 80 (1942). “[S]ubstantial 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.” United States v. Burgos, 94 F.3d 849,
862 (4th Cir. 1996) (en banc). In evaluating the sufficiency of
the evidence, this court does not review the credibility of the
witnesses. United States v. Romer, 148 F.3d 359, 364 (4th Cir.
1998). We find sufficient evidence to support Everhart’s
convictions and therefore no error in the district court’s denial
of the motion.
Last, Everhart contends that his sentence violates Booker
and asks that his case be remanded for resentencing. Because
Everhart objected below based on Blakely v. Washington, 542 U.S.
296 (2004), this claim is reviewed under a harmless error analysis.
United States v. Mackins, 315 F.3d 399, 405 (4th Cir. 2003). The
Government bears the burden in harmless error review of showing
beyond a reasonable doubt that the error did not affect the
defendant’s substantial rights. Id. at 405. Affecting substantial
rights means that the error affected the outcome of the
proceedings. United States v. Stokes, 261 F.3d 496, 499 (4th Cir.
2001).
In Booker, the Supreme Court held that Blakely applied to
the federal sentencing guidelines and that the mandatory manner in
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which the federal sentencing guidelines required courts to impose
sentencing enhancements based on facts found by the court by a
preponderance of the evidence violated the Sixth Amendment. 125 S.
Ct. at 746, 750. Here, the district court erred because the drug
quantity calculations and enhancements were imposed under the
mandatory guidelines scheme. United States v. Hughes, 401 F.3d
540, 547 (4th Cir. 2005). The error affected Everhart’s
substantial rights because the sentence imposed was longer than the
term of imprisonment that the district court could have imposed
based solely on the jury’s findings. See id. at 548. Accordingly,
Everhart’s sentence must be vacated and remanded for resentencing.
The district court, in this post-Hammoud sentencing,
imposed a lower alternative sentence in light of Everhart’s Blakely
objection and pursuant to the recommendation that the court
announce an alternate sentence treating the guidelines as advisory
only. Thus, the district court erred when it imposed Everhart’s
sentence under a mandatory guidelines scheme, and the evidence is
clear and non-speculative that such error affected the outcome of
Everhart’s proceedings.*
The Government agrees that there was error but argues
that resentencing is unnecessary in light of the court’s
alternative sentence. While Hughes did not involve an alternative
*
Just as we noted in Hughes, 401 F.3d at 545 n.4, “[w]e of
course offer no criticism of the district judge, who followed the
law and procedure in effect at the time” of Everhart’s sentencing.
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sentence, the existence of the alternative sentence does not
undermine the finding of error. Post-Booker, a court is required
to consider the guideline range in conjunction with other relevant
factors under 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2005), and
impose sentence. Hughes, 401 F.3d at 546. Here, when imposing the
alternative sentence, the district court provided no discussion or
reasoning and did not state that it had considered the 18 U.S.C.A.
§ 3553(a) factors. Thus, it is unclear on what basis the district
court calculated its alternative sentence and whether the court
would impose a different sentence following the Hughes procedure.
See United States v. Crosby, 397 F.3d 103 (2d Cir. 2005) (ordering
remand for consideration of § 3553 factors, even in light of
identical, alternative sentence). Therefore, the Government has
failed to show beyond a reasonable doubt that the Booker error did
not affect the length of Everhart’s sentence.
Although the sentencing guidelines are no longer
mandatory, Booker makes clear that a sentencing court must still
“consult [the] Guidelines and take them into account when
sentencing.” 125 S. Ct. at 767. On remand, the district court
should first determine the appropriate sentencing range under the
guidelines, making all factual findings appropriate for that
determination. See Hughes, 401 F.3d at 546. The court should
consider this sentencing range along with the other factors
described in 18 U.S.C.A. § 3553(a), and then impose a sentence.
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Id. If that sentence falls outside the guidelines range, the court
should explain its reasons for imposing a non-guidelines sentence,
as required by 18 U.S.C.A. § 3553(c)(2) (West 2000 & Supp. 2005).
Id. The sentence must be “within the statutorily prescribed range
and . . . reasonable.” Id.Based on the foregoing, we affirm Everhart’s convictions,
vacate his sentence, and remand for resentencing. 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 IN PART,
VACATED IN PART, AND REMANDED
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