United States v. Hurley

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4927
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
WILLIAM STEVEN HURLEY,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. Frank W. Bullock, Jr.,
District Judge. (CR-04-42)
Submitted: March 21, 2006 Decided: April 11, 2006
Before WILLIAMS, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Robert J. McAfee, New Bern, North Carolina, for Appellant. Anna
Mills Wagoner, United States Attorney, Clifton T. Barrett,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
William Hurley appeals his conviction and 288-month sentence
following a jury trial on a charge of possession with the intent to
distribute in excess of fifty grams of methamphetamine, in
violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B). We find no
error and affirm Hurley’s conviction and sentence.
I.
On October 10, 2003, Detective Renee Melly of the Winston-
Salem Police Department was conducting drug interdiction with her
K-9 at a Federal Express (“FedEx”) processing facility. After
watching numerous packages pass along the conveyer belt, Detective
Melly observed a package that she suspected might contain
narcotics. Subsequently, Detective Melly removed the package from
the belt and placed it next to three similar looking parcels, at
which point, her K-9 alerted on the suspicious package.
The package’s label indicated that the intended recipient was
“Brian Painland” at the address “9510 R.J. Moore Road,
Tobaccoville, North Carolina, 27050.” The label also identified
the sender of the package as “Miguel Espinoza, Boulevard Postal
Stop N’ Services, 15030 Ventura Boulevard, Sherman Oaks,
California, 91403.” J.A. 44-47. Shortly after the K-9 alerted on
the package, Detective Melly applied for and received a search
warrant. Pursuant to the search warrant, officers opened the
2
package and discovered two heat sealed fish oil supplement bottles.
Subsequent field testing revealed that the bottles actually
contained 439 grams of methamphetamine.
After placing the bottles back into the package and resealing
it, the officers undertook a controlled delivery, whereby Detective
Melly, disguised as a FedEx employee, traveled to 9510 R.J. Moore
Road in an unmarked van. When Detective Melly’s knocks went
unanswered, she left the package on the front porch and joined
several other officers in a stake-out of the house. Several hours
later, the officers observed a Nissan X-Terra pull into the
driveway of the house where they had delivered the package. A
white male, later identified by the officers as defendant Hurley,
exited the vehicle, walked up to the porch, retrieved the package,
returned to his vehicle, and drove away.
After following the defendant for a short time, a marked
patrol unit stopped the defendant’s vehicle and arrested him.
During a search of the vehicle incident to the arrest, detectives
seized, among other things, the following items from the vehicle:
(1) the package containing 439 grams of methamphetamine; (2)
electronic scales; (3) a lighter and a butane torch; (4) two cell
phones; (5) a 150-foot roll of aluminum foil; (6) two sets of
binoculars; (7) a spiral-bound notebook containing the same contact
telephone number for Brian Painland as the FedEx label and the name
“Johnny Blikian.”
3
Before trial, Hurley moved to suppress the evidence of the
package containing methamphetamine. The Government opposed the
motion on the grounds that Hurley did not have standing to contest
the propriety of the search. At the suppression hearing, Hurley
testified that he had provided the alias Brian Painland and the
address 9510 R.J. Moore Road to the individual who had shipped the
methamphetamine from California. Hurley indicated that he had
never used this alias before. Further, Hurley testified that he
had called to the FedEx office the day before his arrest to inquire
about the package’s delivery status.1 During this call, Hurley
identified himself as Brian Painland and made arrangements for
FedEx to re-attempt delivery at 9510 R.J. Moore Road the next day.
Hurley admitted that he did not go to the FedEx processing center
to retrieve the package that day because he did not have any
identification in the name Brian Painland. Further, Hurley
admitted that the contact number listed in the spiral notebook and
on the package for Brian Painland was actually a contact number for
his associate, Johnny Blikian, and not for Hurley himself.
Although Hurley initially testified that 9510 R.J. Moore Road
was a friend’s rental property and that he had received the owner’s
permission to receive mail there, he later admitted that his friend
did not live at the rental property and that he did not know the
1
Apparently, FedEx had previously attempted a delivery but was
unable to find the address because there was no number on the
house.
4
person (or persons) who did. The district court denied the motion
to suppress concluding that to the extent that Brian Painland was
a “one-time alias” of the defendant, and that the package was
delivered to an address with which the defendant had no
association, Hurley did not have a legitimate expectation of
privacy in the package or its contents.
At sentencing, the district court determined that Hurley’s
nine prior armed robbery convictions, which were imposed in four
prior sentences, qualified Hurley for career offender status under
U.S. Sentencing Guidelines Manual § 4B1.1 (2004). Accordingly, the
district court assigned Hurley a Criminal History Category VI.
Combining Hurley’s criminal history with a Total Offense Level of
34, the court calculated Hurley’s guideline range to be 262 to 327
months. The district court sentenced Hurley to a term of
imprisonment of 288 months.
II.
A.
Hurley first contends that the district court erred in denying
his motion to suppress the contents of the package on the basis
that he lacked standing to challenge the search.2 We review the
2
Although the defendant initially asserted in his opening
brief that he had not been provided with a copy of the transcript
of the suppression hearing, Hurley notes in his reply brief that
the Government subsequently provided him with a copy of the
transcript and that it is part of the record of the proceedings
5
district court’s legal conclusions underlying its denial of a
motion to suppress de novo and review factual findings for clear
error. United States v. Johnson, 400 F.3d 187, 193 (4th Cir.),
cert. denied, 126 S. Ct. 134 (2005). The evidence is construed in
the light most favorable to the party prevailing below. United
States v. Seidman, 156 F.3d 542, 547 (4th Cir. 1998).
Both the sender and the designated recipient of a package sent
by mail or other carrier have a legitimate expectation of privacy
in the contents of that package. See United States v. Jacobsen,
466 U.S. 109, 114 (1984). Thus, Hurley has standing to contest the
validity of the search only if he can demonstrate that he was the
designated recipient of the package. This he cannot do. Although
Hurley testified that he had instructed the sender to ship the
package to an addressee named Brian Painland, he admitted that he
had personally never used this alias before. Indeed, Hurley
testified that he did not pick up the package from the FedEx
facility because he did not have any identification in the name
Brian Painland. Hurley further testified that the telephone
contact number for Brian Painland listed in his notebook and on the
FedEx label was a contact number for his associate, Johnny Blikian,
and not for him. Finally, Hurley testified that he did not reside
at the address to which he had the package delivered, nor did he
know the person (or persons) who did. Accordingly, the district
below.
6
court correctly rejected Hurley’s claim that he had a legitimate
expectation of privacy in the package or its contents and thus
appropriately denied his motion to suppress for lack of standing.
B.
Hurley next contends that the evidence was insufficient to
support his conviction for violating 21 U.S.C. § 841(a)(1). In
reviewing a sufficiency challenge, “the 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). “Substantial 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, we do not
“weigh the evidence or review the credibility of the witnesses.”
United States v. Wilson, 118 F.3d 228, 234 (4th Cir. 1997). Where
the evidence supports differing reasonable interpretations, the
jury decides which interpretation to believe. Id. Furthermore,
“the Supreme Court has admonished that we not examine evidence in
a piecemeal fashion, but consider it in cumulative context.”
Burgos, 94 F.3d at 863 (citations omitted). “The focus of
appellate review, therefore, . . . is on the complete picture,
7
viewed in context and in the light most favorable to the
Government, that all of the evidence portrayed.” Id.To prove possession with the intent to distribute
methamphetamine, the Government must establish that (1) the
defendant possessed methamphetamine; (2) the defendant had
knowledge of his possession; and (3) the defendant intended to
distribute the methamphetamine. See id. at 873. A jury can infer
an intent to distribute from the defendant’s possession of a large
quantity of drugs and drug-packaging paraphernalia. United States
v. Collins, 412 F.3d 515, 519 (4th Cir. 2005). Although the
defendant contends that the evidence was insufficient to support
elements two and three (knowledge and intent), this argument is
unavailing. The evidence presented at trial, particularly the
suspicious circumstances by which the defendant came into
possession of the package, the large quantity of methamphetamine in
the package, and the drug paraphernalia in the defendant’s car,
would allow a reasonable jury to infer both knowledge and intent
and thus convict Hurley of possession of methamphetamine with the
intent to distribute. In sum, after reviewing the evidence in the
light most favorable to the Government, we conclude that
substantial evidence supports the conviction.
8
C.
Next, Hurley contends that the district court erred in its
application of U.S. Sentencing Guidelines Manual § 4B1.1, the
career offender enhancement. In 1980, Hurley was convicted of
committing nine separate armed robberies. The sole issue before us
in connection with Hurley’s career offender status is whether the
district court erred in finding that the robberies were separate
offenses for sentencing purposes, and not part of a common plan or
scheme. See U.S.S.G. § 4A1.2, cmt.
In reviewing the district court’s application of the
Guidelines, we accept the findings of fact of the district court
unless they are clearly erroneous and give due deference to the
court’s application of the Guidelines to the facts. United States
v. Cutler, 36 F.3d 406, 407 (4th Cir. 1994). The defendant has the
burden of proving the existence of a common scheme. United States
v. Joy, 192 F.3d 761, 771 (7th Cir. 1999); United States v. Cowart,
90 F.3d 154, 159 (6th Cir. 1996). The relevant factors in deciding
whether offenses are part of a single common scheme or plan are
whether the crimes: (1) were committed within a short period of
time; (2) were committed in close geographic proximity; (3)
involved the same substantive offense; (4) were directed at a
common victim; (5) were solved during the course of a single
criminal investigation; (6) shared a similar modus operandi; (7)
were animated by the same motive; and (8) were tried and sentenced
9
separately only because of an accident of geography. United States
v. Breckenridge, 93 F.3d 132, 138 (4th Cir. 1996) (citations
omitted). Not all of these factors must be present for there to be
a common scheme or plan, nor does the presence of a few of them
require that finding. Id.Although two of the above factors weigh in the defendant’s
favor--the nine armed robberies constituted the same substantive
offense and shared a similar modus operandi--the remaining six
factors cut against his argument that they constituted a common
scheme of plan. Indeed, the record indicates that Hurley robbed
several unrelated victims in multiple counties over a protracted
82-day period. Further, the robberies were not solved by a single
investigation and the offenses were not tried and sentenced
separately only because of an accident of geography. Accordingly,
we conclude that the district court did not err in rejecting the
defendant’s argument that the armed robberies were part of a common
scheme or plan and thereby applying the career offender
enhancement.
D.
Finally, the defendant contends that the district court
committed plain error by failing to consider the Guidelines as
advisory, rather than mandatory. While the mandatory application
of the Guidelines constitutes plain error, United States v. White,
10
405 F.3d 208, 217 (4th Cir.), cert. denied, 126 S. Ct. 668 (2005),
a defendant who seeks resentencing on this ground must show actual
prejudice, i.e., a “nonspeculative basis for concluding that the
treatment of the Guidelines as mandatory ‘affected the district
court's selection of the sentence imposed.’” Id. at 223 (quoting
Williams v. United States, 503 U.S. 193, 203 (1992)). The record
is devoid of any evidence that the district court desired to
sentence Hurley below the applicable Guidelines range. To the
contrary, the district court indicated that a sentence in the
middle of the range was appropriate, given the nature of the
offense and the need to protect the public. Indeed, the district
court declined to exercise its discretion under the mandatory
Guidelines regime to impose sentence at the low end of the
Guidelines range. Thus, since Hurley cannot show that the district
court would have imposed a lesser sentence under an advisory
Guidelines regime, he has failed to establish plain error.
III.
For the foregoing reasons, we affirm Hurley’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 in the decisional process.
AFFIRMED
11