United States v. Ricketts

ON REHEARING
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4721
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MARK ANTHONEY RICKETTS,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr.,
District Judge. (CR-02-393)
Submitted: June 8, 2005 Decided: July 18, 2005
Before NIEMEYER, WILLIAMS, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Jeffrey B. Welty, Durham, North Carolina, for Appellant. Anna
Mills Wagoner, United States Attorney, Michael A. DeFranco, Michael
F. Joseph, Assistant United States Attorneys, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Mark Anthony Ricketts appeals from the judgment of the
district court convicting him of conspiracy to distribute cocaine
base, distribution of cocaine base, and possession with intent to
distribute cocaine base, all in violation of 21 U.S.C. §§ 841, 846
(2000). We previously affirmed Ricketts’ convictions and sentence.
However, Ricketts petitioned for rehearing, and we granted that
petition based on the Supreme Court’s intervening decision in
United States v. Booker, 125 S. Ct. 738 (2005). Finding that the
district court’s imposition of sentence under a mandatory
application of the Sentencing Guidelines did not impact Ricketts’
substantial rights, we again affirm his convictions and sentence.
Ricketts first claims that the district court erred in
denying his motion for a judgment of acquittal made pursuant to
Fed. R. Crim. P. 29. Ricketts alleges a variance between the
indictment, which charged a single conspiracy, and the evidence at
trial, which Ricketts claims supports multiple conspiracies. This
court has held that “[a] multiple conspiracy instruction is not
required unless the proof at trial demonstrates that [the
defendants] were involved only in ‘separate conspiracies unrelated
to the overall conspiracy charged in the indictment.’” United
States v. Kennedy, 32 F.3d 876, 884 (4th Cir. 1994). The fact that
one or some of the participants may have been unknown to the others
is not dispositive. See United States v. Gray, 47 F.3d 1359, 1368
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(4th Cir. 1995). Rather, the question is whether there is “an
overlap of key actors, methods, and goals.” United States v.
Strickland, 245 F.3d 368, 385 (4th Cir. 2001) (internal quotation
marks and citations omitted). We conclude there is such an
overlap. The evidence supports the conclusion that Ricketts and
his coconspirators (Christopher Sumner, Orel Dawes, and Richard
Moore) shared a common purpose to facilitate the distribution of
narcotics and thus were involved in the single conspiracy charged
in the indictment. Accordingly, we deny this claim.
Ricketts next claims that the district court erred in
excluding the expert testimony of a scientist in the field of
spectrographic voice analysis. Expert testimony is admissible
under Fed. R. Evid. 702 if it concerns: (1) scientific, technical,
or other specialized knowledge, that (2) will aid the jury or other
trier of fact to understand or resolve a fact at issue. See
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592
(1993). We conclude the proffered evidence was lacking in
probative value because it did not make “more probable or less
probable” a fact of consequence to the jury. See Fed. R. Evid.
401. To the contrary, the evidence demonstrated only that no
“meaningful” scientific analysis was possible. Given this fact, we
find no abuse of discretion in the district court’s decision to
exclude the testimony of the witness. See Gen Elec. Co. v. Joiner,
522 U.S. 136, 139 (1997) (stating standard of review).
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Ricketts also claims that the district court erred in
dismissing a juror for cause based on the juror’s alleged bias
against law enforcement officers. Because Ricketts did not object
to the juror’s dismissal at trial, we review this claim for plain
error. See United States v. Olano, 507 U.S. 725, 732-34 (1993).
The ultimate issue in a dismissal for cause is whether the juror
“could be fair and impartial and decide the case on the facts and
law presented.” United States v. Capers, 61 F.3d 1100, 1105 (4th
Cir. 1995). Our review of the record discloses no error on the
part of the court. The juror responded under questioning by the
court that he was “bothered” by the police and “really mad” at
their behavior two years previously in handling criminal charges
against him that eventually were dismissed. He raised this
information on his own volition and not at the prodding of the
court or counsel. Accordingly, we conclude that it was not
unreasonable for the district court to strike the juror for cause.
Finally, we consider the impact of United States v.
Booker, 125 S. Ct. 738 (2005), on the district court’s imposition
of sentence under a mandatory sentencing guidelines scheme. In
Booker, the Supreme Court ruled that the Sixth Amendment is
violated when a district court, acting pursuant to the Sentencing
Reform Act and the Guidelines, imposes a sentence greater than the
maximum guideline sentence authorized by the facts found by the
jury alone. Id. In United States v. Hughes, 401 F.3d 540 (4th
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Cir. 2005), we concluded that such a violation is error, that the
error is plain, and that it affects a defendant’s substantial
rights. Id. at 547-48. However, we have declined to presume
prejudice on the mere basis of the application of a mandatory
guidelines scheme in the absence of a Sixth Amendment violation.
See United States v. White, 405 F.3d 208, 223 (4th Cir. 2005).
Instead, the burden falls on a defendant to show that the
application of the guidelines affected the outcome of the
proceedings. Id. (relying on United States v. Olano, 507 U.S. 725(1993)).
Our review of the record does not reveal that the
district court’s application of the mandatory guidelines scheme
affected Ricketts’ substantial rights. The jury concluded in three
separate findings that Ricketts was responsible for fifty or more
grams of cocaine base. Combined, these findings amount to a
conclusion by the jury that Ricketts was responsible for at least
150 grams of cocaine base as relevant conduct. The Sentencing
Guidelines equate 150 grams of cocaine base to a base offense level
of thirty-four, the level the district court adopted at sentencing.
See U.S. Sentencing Guidelines Manual § 2D1.1(c)(3) (2003). When
combined with Ricketts’ criminal history category of one, the
resulting sentencing range was 151 to 188 months’ imprisonment.
See USSG Ch. 5, Pt. A, table. The district court’s imposition of
a sentence of 151 months was within the Guidelines range. Because
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the sentence was supported by the findings of the jury, and because
the district court made no statements at sentencing suggesting it
would have imposed a lower sentence if it were not barred by the
Guidelines, we conclude that Ricketts fails to show that he was
prejudiced by the imposition of a sentence under the mandatory
guidelines scheme or that his substantial rights were otherwise
abridged.
Accordingly, we affirm the judgment 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
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