United States v. Belcher

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4791
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JASON P. BELCHER, a/k/a Biz,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington. Robert C. Chambers,
District Judge. (3:09-cr-00158-3)
Submitted: April 27, 2011 Decided: May 23, 2011
Before NIEMEYER and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Matthew A. Victor, VICTOR VICTOR & HELGOE LLP, Charleston, West
Virginia, for Appellant. R. Booth Goodwin II, United States
Attorney, Joseph F. Adams, Special Assistant United States
Attorney, Huntington, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jason P. Belcher was convicted by a jury of conspiracy
to possess with intent to distribute fifty grams or more of
cocaine base and a quantity of heroin, in violation of 21 U.S.C.
§§ 841(a), 846 (2006), and distributing five grams or more of
cocaine base, in violation of 21 U.S.C. § 841(a). He was
sentenced to 216 months’ imprisonment. On appeal, Belcher
argues that the district court erred (1) in denying his motion
to suppress; (2) in permitting the Government to strike the only
Asian American individual from the venire; (3) in denying his
motion to strike a juror for cause; and (4) in admitting
evidence of his prior incarceration. He also argues that his
sentence is procedurally and substantively unreasonable. We
affirm.
Belcher argues that the district court erred in
denying his motion to suppress the evidence recovered during the
search of his apartment pursuant to a search warrant because the
agents’ decision to seek the warrant and the issuing judge’s
decision to grant it were influenced by evidence obtained from a
prior entry of the apartment without a warrant and without
consent. We review a district court’s factual findings
underlying the denial of a motion to suppress for clear error,
and review its legal determinations de novo. United States v.
Wardrick, 350 F.3d 446, 451 (4th Cir. 2003).
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After reviewing the record, we conclude that, even if
some evidence to support the warrant was obtained from an
illegal entry of Belcher’s apartment, significant independent
evidence established probable cause for the warrant. Thus the
district court did not err in denying Belcher’s motion to
suppress.
Belcher next contends that the district court violated
the Equal Protection Clause of the Fifth Amendment by permitting
the Government to strike the only Asian American individual from
the venire. Belcher asserts that the Government’s proffered
explanation for the strike was not applied to similarly situated
individuals. Under Batson v. Kentucky, 476 U.S. 79 (1986), the
use of a peremptory challenge for a racially discriminatory
purpose offends the Equal Protection Clause. Id. The trial
court’s resolution of a Batson challenge is largely a
credibility determination, and thus we give deference to the
trial court’s findings as to whether a Batson violation
occurred, reviewing its findings for clear error. United States
v. Green, 599 F.3d 360, 377 (4th Cir.), cert. denied, 131 S. Ct.
271 (2010); United States v. Farrior, 535 F.3d 210, 221 (4th
Cir. 2008). Our review of the record leads us to conclude that
the district court did not clearly err in finding that Belcher
failed to establish purposeful discrimination.
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Next, Belcher contends that the district court erred
in denying his motion to strike a juror for cause. According to
Belcher, the juror was biased in favor of police officers
because she stated during voir dire that she would give the
testimony of a police officer greater weight than that of an
ordinary witness. We review a district court’s determination of
whether a juror should be excused for cause for abuse of
discretion. Patton v. Yount, 467 U.S. 1025, 1038 (1984).
Having carefully reviewed the record, we conclude that the
district court did not abuse its discretion in denying Belcher’s
motion to strike the juror for cause.
Next, Belcher argues that the district court plainly
erred by permitting the Government to elicit from a witness
evidence of Belcher’s prior incarceration, in violation of its
order prohibiting the Government from introducing into evidence
Belcher’s prior conviction for possession of cocaine base.
Belcher did not object to the testimony, and thus we review his
claim for plain error. United States v. Brewer, 1 F.3d 1430,
1434 (4th Cir. 1993). To demonstrate plain error, Belcher must
show that (1) there was an error; (2) the error was plain; and
(3) the error affected his substantial rights. United States v.
Olano, 507 U.S. 725, 732 (1993). Even if Belcher makes this
three-part showing, we will exercise our discretion to correct
the error only if it “seriously affect[s] the fairness,
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integrity or public reputation of judicial proceedings.” Id. at
736. Applying this standard, we conclude that any error did not
affect Belcher’s substantial rights.
Belcher next challenges his sentence as both
procedurally and substantively unreasonable. Specifically,
Belcher argues that the district court improperly calculated the
Guidelines range by attributing to him excessive drug weight
based on double counting and the unreliable testimony of co-
conspirators. He also argues that the court erred in finding
that a three-level enhancement for a leadership role was
warranted and in failing to consider the relevant 18 U.S.C.
§ 3553(a) (2006) factors when imposing sentence. Finally,
Belcher contends that the 216-month sentence is substantively
unreasonable and fails to reflect his history and
characteristics and in overstating the seriousness of his
criminal history.
We review a sentence for reasonableness, using an
abuse of discretion standard of review. Gall v. United States,
552 U.S. 38, 50 (2007). The first step in this review requires
us to ensure that the district court committed no significant
procedural error. United States v. Evans, 526 F.3d 155, 161
(4th Cir. 2008). Procedural errors include “failing to
calculate (or improperly calculating) the Guidelines range,
treating the Guidelines as mandatory, failing to consider the
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§ 3553(a) factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen
sentence.” Gall, 552 U.S. at 51. We then consider the
substantive reasonableness of the sentence, taking into account
the totality of the circumstances. Id.A district court’s finding regarding drug weights is
factual in nature and is therefore reviewed for clear error.
United States v. Fletcher, 74 F.3d 49, 55 (4th Cir. 1996). We
conclude that the district court’s determination of the drug
weight attributed to Belcher was clearly supported by the
evidence in the record.
Similarly, we review a district court’s application of
a leadership role enhancement pursuant to U.S. Sentencing
Guidelines Manual (“USSG”) § 3B1.1 (2009) for clear error.
United States v. Cameron, 573 F.3d 179, 184 (4th Cir. 2009). In
determining a defendant’s leadership role, the sentencing court
must consider seven factors:
(1) the exercise of decision making authority, (2) the
nature and participation in the commission of the
offense, (3) the recruitment of accomplices, (4) the
claimed right to a larger share of the fruits of the
crime, (5) the degree of participation in planning or
organizing the offense, (6) the nature and scope of
the illegal activity, and (7) the degree of control
and authority exercised over others.
USSG § 3B1.1, comment. (n.4); Cameron, 573 F.3d at 184.
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After reviewing the record, we conclude that the district
court’s application of a three-level enhancement to Belcher’s
offense level was well supported.
Finally, we conclude that the district court
adequately explained the reasons for the chosen sentence and
appropriately applied the relevant 18 U.S.C. § 3553(a) (2006)
factors.
The sentence imposed is also substantively reasonable.
A sentence within the properly calculated Guidelines range is
presumptively reasonable. United States v. Allen, 491 F.3d 178,
193 (4th Cir. 2007). In this case, Belcher received a sentence
of 216 months’ imprisonment, near the low-end of the properly
calculated Guidelines range, and the record does not reveal any
facts that would rebut the presumption of reasonableness.
Accordingly, we affirm the district court’s judgment.
We deny Belcher’s pro se motions for judicial notice, to relieve
counsel, to file a pro se supplemental brief, and to strike
counsel’s brief. We deny as moot Belcher’s motion for an
extension of time to file a pro se supplemental brief. 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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