US v. Morales

Filing 920081201

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 07-4151

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

On Remand from the Supreme Court of the United States. (S. Ct. No. 07-8902)

Submitted:

October 28, 2008

Decided:

December 1, 2008

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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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: On Morales's November 13, and 2007, this court See affirmed Andres v. On

conviction

sentence.

United

States

Morales, 253 F. App'x 287 (4th Cir. 2007) (No. 07-4151).

June 9, 2008, the Supreme Court granted Morales's petition for a writ of certiorari, vacated this court's judgment and remanded to this court for further consideration in light of Gall v. United States, 128 S. Ct. 586 (2007). Having reconsidered

Morales's sentence in light of Gall and this court's decisions interpreting Gall, we find no reversible error. affirm. Andres Morales was convicted by a jury of one count of conspiracy U.S.C. § to 846 distribute (2000). methamphetamine, The Presentence in violation of 21 Accordingly, we

Investigation

Report

recommended an offense level of forty-two, which included a drug weight of between 9.92917 and 11.430 kilograms (net weight) as well as enhancements for possession of a firearm, aggravated role in the offense, and obstruction ("USSG") of §§ justice. See U.S.

Sentencing (c)(2); criminal

Guidelines

Manual

2D1.1(a)(3), was

(b)(1), three

3B1.1(c); history

3C1.1

(2006). placing

Morales him in

assessed

points,

criminal

history

category II.

The resulting advisory Guidelines range was 360 See USSG Ch. 5, Pt. A (2006)

months to life imprisonment. (sentencing table). 2

While

Morales

agreed

with

the

probation

officer's

calculations, he objected generally to the basis upon which they were found. objections finding to The district court, however, overruled Morales's the they drug were weight and by enhancements a based on of a

that

supported

preponderance

the

evidence. (2006)

After discussing the relevant 18 U.S.C. § 3553(a) the court sentenced Morales to 360 months'

factors,

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 3

analysis and a

of

controlled on

substances,

including clandestine

methamphetamine, methamphetamine

course

investigating

laboratories; during his term of employment with the DEA, he has chemically analyzed substances to determine whether they contain a controlled substance, involving including between and 700 he and has 800 tests

specifically

methamphetamine;

testified

approximately thirty times in prior criminal cases. Dang's cross-examination, protocols performed testimony, included to which the was tests subjected used as His to well vigorous as the to

assure

accuracy.

inability

respond to some of the detailed questions proffered on crossexamination is relevant to the weight of Dang's testimony rather than to its admissibility. See United States v. Moreland, 437 Thus, we conclude the district by admitting Dang's

F.3d 424, 431 (4th Cir. 2006). court did not abuse its

discretion

testimony. Morales next contends that several of the district We review

court's rulings on evidentiary issues were improper.

a district court's decision regarding the admission or exclusion of evidence for abuse of discretion. United States v.

Lancaster, 96 F.3d 734, 744 (4th Cir. 1996). abused only when a district court has

Such discretion is "arbitrarily or

acted

irrationally." Cir. 1994)

United States v. Moore, 27 F.3d 969, 974 (4th quotation 4 marks and citation omitted).

(internal

However,

evidentiary

rulings

based

on

erroneous

legal United

conclusions are "by definition an abuse of discretion." States v. Turner, 198 F.3d 425, 430 (4th Cir. 1999). 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 Dannie Fraley, a co-conspirator, in Morales's was girlfriend's to be

and location were appointed. arrived vehicle. at the Two chosen packages were

location of

what by

determined from the

methamphetamine

retrieved

officers

vehicle.

Fraley testified that he was sent by Morales to execute the deal. Morales (1) excluding argues that the district Fraley's court erred by:

testimony

regarding

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 post-trial motion for a new trial in light of the cumulative 5

effect of these errors.

When viewed in the context of the

trial, the district court's rulings were neither arbitrary nor irrational. Moreover, 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. Finally, Morales contends that the imposition of a

sentence within the calculated Guidelines range is unreasonable. When determining a sentence, the district court must calculate the appropriate advisory Guidelines range and consider it in conjunction with the factors set forth in 18 U.S.C. § 3553(a). Gall, 128 S. Ct. at 596. imposition of a Appellate review of a district court's "whether inside, just outside, or

sentence,

significantly outside the Guidelines range," is for abuse of discretion. Id. at 591. Sentences within the applicable

Guidelines range may be presumed by the appellate court to be reasonable. Cir. 2007). The district court followed the necessary procedural steps in sentencing Guidelines Morales, as appropriately properly treating calculating the and United States v. Pauley, 511 F.3d 468, 473 (4th

Sentencing

advisory,

considering the applicable Guidelines range, and weighing the relevant § 3553(a) factors. Furthermore, we may presume

Morales's sentence, which is at the low end of the applicable

6

Guidelines reasonable. To innocence

range

and

below

the

statutory

maximum,

to

be

the

extent that have

Morales his been

continues

to to

maintain the

his

and

argue

objections sustained, factor to

sentencing court by a

enhancements properly

should each

the be

district supported

found

sentencing

preponderance of the evidence. F.3d 65, 72 (4th Cir. at

See United States v. Morris, 429 Morales's is challenge to the as

2005). sentencing

testimony

presented

likewise

unavailing,

witness credibility is the sole province of the factfinder and will not be reassessed on appeal. See United States v.

Saunders, 886 F.2d 56, 60 (4th Cir. 1989).

Thus, we conclude

that the district court did not abuse its discretion in imposing the chosen sentence. Accordingly, we affirm the judgment of the district court. legal before We dispense with oral argument because the facts and contentions the court are and adequately argument presented not in aid the the materials decisional

would

process. AFFIRMED

7