US v. Morales

Filing 920071113

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 07-4151

UNITED STATES OF AMERICA, Plaintiff - Appellee, versus ANDRES MORALES, Defendant - Appellant.

Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. John T. Copenhaver, Jr., District Judge. (2:06-cr-00112-1)

Submitted:

October 12, 2007

Decided:

November 13, 2007

Before NIEMEYER, MICHAEL, and KING, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Barron M. Helgoe, VICTOR VICTOR & HELGOE LLP, Charleston, West Virginia, for Appellant. Charles T. Miller, United States Attorney, Joshua C. Hanks, Assistant United States Attorney, Charleston, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Andres Morales was convicted by a jury of one count of conspiracy to distribute methamphetamine, in violation of 21 U.S.C. § 846 (2000). Morales was sentenced by the district court to 360 Finding no error, we affirm.

months' imprisonment.

On appeal, Morales first contends that the district court erred in admitting expert witness testimony. We review the

admission of expert testimony for an abuse of discretion.

Kumho

Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999). Before permitting expert testimony, the district court must determine that the

testimony is both reliable and relevant and will assist the trier of fact in understanding or determining a fact in issue in the case. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592-93 (1993). Prior to his qualification as an expert witness, Minh Dang testified that: he was employed for approximately ten years as a forensic chemist with the Drug Enforcement Administration ("DEA"); he received a Bachelor of Science degree in biochemistry from California Polytechnic University and a Master of Science degree in chemical toxicology from George Washington University; he completed a nine month training course for the analysis of controlled

substances, including methamphetamine, and a course on investigating clandestine methamphetamine laboratories; during his term of

employment with the DEA, he has chemically analyzed substances to

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determine whether they contain a controlled substance, including between 700 and 800 tests specifically involving methamphetamine; and he has testified approximately thirty times in prior criminal cases. Dang's testimony, which was subjected to vigorous crossexamination, included the tests used as well as the protocols performed to assure accuracy. His inability to respond to some of

the detailed questions proffered on cross-examination is relevant to the weight of Dang's testimony rather than to its admissibility. See United States v. Moreland, 437 F.3d 424, 431 (4th Cir.), cert. denied, 126 S. Ct. 2054 (2006). Thus, we conclude the district

court did not abuse its discretion by admitting Dang's testimony. Morales next contends that several of the district court's rulings on evidentiary issues were improper. We review a district

court's decision regarding the admission or exclusion of evidence for abuse of discretion. 744 (4th Cir. 1996). United States v. Lancaster, 96 F.3d 734,

Such discretion is abused only when a district United States v.

court has acted "arbitrarily or irrationally."

Moore, 27 F.3d 969, 974 (4th Cir. 1994) (internal quotation marks and citation omitted). erroneous legal However, evidentiary rulings based on are "by definition an abuse of

conclusions

discretion." 1999).

United States v. Turner, 198 F.3d 425, 430 (4th Cir.

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The evidence presented at trial established that Morales supplied methamphetamine to several distributors in the southern portion of West Virginia. On one occasion, a cooperating witness

aided investigators by placing a monitored call to Morales's cell phone in an effort to schedule a controlled buy. The buy was

ultimately scheduled, and a date and location were appointed. Dannie Fraley, a co-conspirator, arrived at the chosen location in Morales's girlfriend's vehicle. Two packages of what was determined to be methamphetamine were retrieved by officers from the vehicle. Fraley testified that he was sent by Morales to execute the deal. Morales argues that the district court erred by: (1) excluding testimony regarding Fraley's niece's alleged

methamphetamine addiction; (2) admitting testimony from Fraley's girlfriend regarding whether Fraley would hide his drug use from her; (3) admitting a photograph of the interior of Morales's

girlfriend's vehicle in which a child's car seat was visible; and (4) admitting testimony regarding Morales's personal life. He

further argues that the district court erred in denying his posttrial motion for a new trial in light of the cumulative effect of these errors. When viewed in the context of the trial, the district Moreover,

court's rulings were neither arbitrary nor irrational.

even if the rulings were erroneous, such error would nevertheless be harmless in light of the evidence adduced at trial to establish Morales's guilt.

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Finally,

Morales

contends

that

the

imposition

of

a He

sentence within the calculated guideline range is unreasonable.

continues to maintain his innocence and therefore argues that his objections sustained. sentencing evidence. to the sentencing the be enhancements court by a should have found of been each the

However, factor to

district supported

properly

preponderance

See United States v. Morris, 429 F.3d 65, 72 (4th Cir. To the extent Morales

2005), cert. denied, 127 S. Ct. 121 (2006).

challenges as "vague and unreliable" the testimony presented at sentencing, witness credibility is solely within the province of the factfinder and will not be reassessed on appeal. v. Saunders, 886 F.2d 56, 60 (4th Cir. 1989). Moreover, the district court appropriately calculated the advisory guideline range and considered it in conjunction with other relevant factors under the Sentencing Guidelines and 18 U.S.C. § 3553(a) (2000). See Moreland, 437 F.3d at 432-33. Morales's 360See United States

month sentence, which is at the lowest end of the applicable guideline range and below the statutory maximum, is therefore presumptively reasonable. See United States v. Green, 436 F.3d 449, 457 (4th Cir.), cert. denied, 126 S. Ct. 2309 (2006); see also Rita v. United States, 127 S. Ct. 2456, 2462-65 (2007) (approving

presumption of reasonableness accorded sentences within properly calculated guideline range).

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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 in the decisional process.

AFFIRMED

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