United States v. Toney

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4814
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JESS CALVIN TONEY,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Charlottesville. Norman K. Moon, District
Judge. (CR-03-116)
Submitted: October 28, 2005 Decided: September 19, 2006
Before NIEMEYER, MOTZ, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
David B. Franzén, FEIL, PETTIT & WILLIAMS, PLC, Charlottesville,
Virginia, for Appellant. John L. Brownlee, United States Attorney,
Nancy S. Healey, Assistant United States Attorney, Charlottesville,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Jess Calvin Toney appeals from his sentence and
convictions entered after a jury found him guilty of possession of
a firearm in furtherance of a drug trafficking crime in violation
of 18 U.S.C.A. § 924(c)(1) (West 2000 & Supp. 2006) (Count 1) and
possession of a firearm while being an unlawful user of controlled
substances in violation of 18 U.S.C. § 922(g)(3) (2000) (Count 2).
Toney was sentenced to 60 months of imprisonment for Count 1 and 57
months consecutively for Count 2, for a total sentence of 117
months. On appeal, Toney argues that his sentence was imposed in
violation of Blakely v. Washington, 542 U.S. 296 (2004), which has
since been extended to the Federal Sentencing Guidelines by United
States v. Booker, 543 U.S. 220 (2005), and that the district court
erred by allowing certain letters into evidence. For the reasons
that follow, we affirm.
Toney contends that the enhancements to his sentence for
drug weight and obstruction of justice violate the Sixth Amendment
under Booker. Because Toney preserved this issue by objecting
below, we review de novo. See United States v. Mackins, 315 F.3d
399, 405 (4th Cir. 2003). When a defendant preserves Sixth
Amendment error, we “must reverse unless we find this
constitutional error harmless beyond a reasonable doubt, with the
Government bearing the burden of proving harmlessness.” Id.(citation omitted).
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The Government admits that there was a Sixth Amendment
violation in this case because Toney’s sentence was enhanced by
facts not necessarily found by the jury. The district court,
however, imposed an identical, alternative sentence under 18
U.S.C.A. § 3553(a) (West 2000 & Supp. 2006), in the event the
Guidelines were found to be unconstitutional, following this
court’s opinion in United States v. Hammoud, 381 F.3d 316 (4th Cir.
2004), vacated on other grounds, 543 U.S. 1097 (2005). Because the
district court explicitly stated that it would have imposed the
same sentence even under an advisory guideline system, the Sixth
Amendment error was harmless beyond a reasonable doubt. See United
States v. Shatley, 448 F.3d 264, 267 (4th Cir. 2006) (holding that
because the district court announced an identical alternative
sentence, treating the Sentencing Guidelines as advisory and
considering the statutory sentencing factors in 18 U.S.C.A.
§ 3553(a), the government has met its burden of demonstrating that
the constitutional error was harmless). We also find no reversible
error in the fact that the district court only mentioned its
alternative sentence in its written judgment.
We do not find that the district court abused its
discretion by allowing certain letters written by Toney to his wife
to be admitted and for Toney to be cross-examined using the
letters. United States v. Bostian, 59 F.3d 474, 480 (4th Cir.
1995) (holding that a district court has broad discretion in ruling
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on the relevance and admissibility of evidence which will not be
reversed absent an abuse of discretion). We note that the letters
to which Toney objects were introduced only after he had testified
on direct examination that the credibility of his wife was suspect
as evidenced by letters she had written to him. “[W]hen a
defendant takes the stand, his credibility may be impeached and his
testimony assailed like that of any other witness.” Portuondo v.
Agard, 529 U.S. 61, 69 (2000) (internal quotation and citation
omitted). We therefore find this claim fails.
Accordingly, we affirm Toney’s convictions 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 the decisional process.
AFFIRMED
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