US v. Brad Hull

Filing 920100305

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 07-4925

UNITED STATES OF AMERICA, Plaintiff ­ Appellee, v. BRAD CHRISTOPHER HULL, Defendant ­ Appellant.

Appeal from the United States District Court for the Western District of Virginia, at Lynchburg. Norman K. Moon, District Judge. (6:06-cr-00013-nkm)

Submitted:

February 8, 2010

Decided:

March 5, 2010

Before WILKINSON and Senior Circuit Judge.

NIEMEYER,

Circuit

Judges,

and

HAMILTON,

Affirmed by unpublished per curiam opinion.

Steven Jay Rozan, STEVEN JAY ROZAN & ASSOCIATES, Houston, Texas, for Appellant. Julia C. Dudley, Acting United States Attorney, Jean B. Hudson, Assistant United States Attorney, Charlottesville, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Brad Christopher Hull was convicted after a jury trial of one count of conspiracy to distribute and to possess with the intent to distribute more than five kilograms of cocaine, in violation sentenced of Hull 21 to U.S.C. 292 § 846 months' (2006). The district Hull court

imprisonment.

appeals,

asserting that the district court erred in denying his Fed. R. Crim. P. 29 motions for judgment of acquittal, admitting witness testimony, instructing the jury, and calculating his base

offense level under the U.S. Sentencing Guidelines Manual (2006) without a jury finding the facts supporting that level beyond a reasonable doubt. We affirm.

This court reviews de novo the district court's denial of Rule 29 motions for judgment of acquittal. United States v.

Reid, 523 F.3d 310, 317 (4th Cir.), cert. denied, 129 S. Ct. 663 (2008). A defendant challenging the sufficiency of the evidence United States v. Beidler, 110 F.3d

"bears a heavy burden."

1064, 1067 (4th Cir. 1997) (internal quotation marks omitted). The jury's verdict must be sustained "if, viewing the evidence in the light most favorable to the prosecution, the verdict is supported by substantial evidence." F.3d 209, 216 (4th Cir. 2006) United States v. Smith, 451 (internal quotation marks

omitted). finder of

Substantial evidence is "evidence that a reasonable fact could accept as 2 adequate and sufficient to

support a conclusion of a defendant's guilt beyond a reasonable doubt." for Id. (internal quotation marks omitted). evidence, this court In reviewing both

substantial

considers

circumstantial and direct evidence and allows the Government all reasonable inferences from the facts shown to those sought to be established. (4th Cir. 2008). United States v. Harvey, 532 F.3d 326, 333

This court does not weigh evidence or review United States v. Wilson, 118 F.3d 228, 234

witness credibility. (4th Cir. 1997).

Rather, it is the role of the jury to judge

the credibility of witnesses, resolve conflicts in testimony, and weigh the evidence. 392 (4th Cir. 1984). To convict Hull of conspiracy to distribute and to possess with the intent to distribute cocaine, the Government was required to establish beyond a reasonable doubt that: (1) two or more persons agreed to distribute and possess with the intent to distribute the drug, and (2) Hull knew of the United States v. Manbeck, 744 F.2d 360,

conspiracy and (3) "knowingly and voluntarily became a part" of the conspiracy. (4th Cir.) Ct. United States v. Yearwood, 518 F.3d 220, 227 quotation "The marks omitted), of the cert. crime denied, is an

(internal 137

129 S.

(2008).

gravamen

agreement to effectuate a criminal act." quotation marks omitted). A defendant

Id. at 226 (internal may be convicted of

conspiracy without knowing all of its details, as long he enters 3

the conspiracy understanding that it is unlawful and willfully joins in the plan at least once. See United States v. Burgos,

94 F.3d 849, 858 (4th Cir. 1996) (en banc). Hull support his contends conviction that the evidence is insufficient witnesses to

because

Government

gave

inconsistent and unbelievable testimony.

This challenge fails,

however, because witness credibility is not subject to appellate review, Wilson, 118 F.3d at 234, and, as evidenced by its

finding of guilt, the jury resolved any conflicts in testimony in favor of the Government and determined the Government's

witnesses to be sufficiently credible, see Manbeck, 744 F.2d at 392. Further, after review of the record, we conclude that

there was sufficient evidence from which a jury could conclude that Hull agreed with others to distribute and possess with the intent to distribute cocaine and knowingly and voluntarily

participated in a scheme to do so. the district court did not err

We therefore conclude that in denying Hull's Rule 29

motions. Next, Hull argues that the district court abused its discretion under Fed. R. Evid. 404(b) by allowing a witness to testify about his prior cocaine base purchases from Hull. This

court typically reviews a district court's evidentiary rulings for abuse of discretion. 150, 155 (4th Cir. 2006). United States v. Perkins, 470 F.3d An abuse of discretion occurs only 4

when the district court "acted arbitrarily or irrationally in admitting evidence." United States v. Williams, 445 F.3d 724,

732 (4th Cir. 2006) (internal quotation marks omitted). Although not admissible to prove the defendant's

character, evidence of other "crimes, wrongs, or acts" may be admitted to prove "motive, opportunity, intent, preparation,

plan, knowledge, identity, or absence of mistake or accident." Fed. R. Evid. 404(b); see United States v. Hodge, 354 F.3d 305, 311-12 (4th Cir. 2004). Rule 404(b) is a rule of inclusion that

allows evidence of other crimes or acts to be admitted, except that which tends to prove only criminal disposition. States v. Queen, 132 F.3d 991, 994-95 (4th Cir. 1997). See United For such

evidence to be admissible, it must be "(1) relevant to an issue other than the general character of the defendant; (2) necessary to prove an element of the charged offense; and (3) reliable." Hodge, 354 F.3d at 312. the evidence must not Id. these elements are satisfied here. "Additionally, the probative value of be substantially outweighed" by its

prejudicial effect. We

conclude

Evidence of Hull's prior drug sales was not admitted for the purpose of establishing his character. conspiracy distribute to distribute and and to Hull was charged with with the prior intent sales to of

possess of

cocaine,

evidence

Hull's

cocaine base was relevant to Hull's knowledge, identity as a 5

member convict

of

the

conspiracy, of the

and

the

absence

of

mistake. Government

To was

Hull

conspiracy

charge,

the

required to show that Hull knew of the conspiracy and knowingly and voluntarily became a part of it. Hull's prior sale of

cocaine base to a repeat buyer over two years was relevant and necessary to demonstrating that Hull had knowledge of drug sales and that his participation in the conspiracy was not an accident or mistake. unreliable. Hull does not assert that the witness testimony was Finally, we conclude that the probative value of

the evidence was not substantially outweighed by confusion or unfair prejudice. Although this information was damaging to

Hull, it was not unfairly prejudicial, nor did it "subordinate reason to emotion in the factfinding process." Gray, marks 405 F.3d 227, 239 (4th Cir. we 2005) United States v. quotation district

(internal that the

omitted).

Accordingly,

conclude

court did not abuse its discretion in admitting the disputed testimony under Rule 404(b). Hull also asserts that the district court's

instructions to the jury violated United States v. Collins, 415 F.3d 304, 311-15 (2005) (holding that in order for a district court to determine which of the three graduated penalty

subsections of 21 U.S.C. § 841(b) (2006) applies to a defendant convicted instructed of to a § 846 determine drug the 6 conspiracy, threshold the jury must of be

quantity

drugs

attributable to each conspiracy defendant on trial).

Because

Hull failed to object to the district court's instructions on this ground, v. we review 507 this U.S. claim 725, for plain error. To United this

States

Olano,

732

(1993).

meet

standard, Hull must show: (1) error existed; (2) the error was plain; and (3) the error affected his substantial rights. at 731-34. Id.

Even if Hull makes this showing, we will exercise

our discretion to notice the error only if it "seriously affects the fairness, integrity Id. at or 736 public reputation quotation of judicial marks and

proceedings." alteration

(internal fails to

omitted).

Hull

establish

plain

error,

however, as the district court's instructions directed the jury to find the amount of cocaine attributable to Hull. this claim fails. Finally, rights were not we conclude when that the Hull's district Sixth court Amendment calculated Therefore,

violated

Hull's base and total offense levels and resulting Guidelines range based on facts it found by a preponderance of the

evidence. resultant sentence

Because the district court appropriately treated the Guidelines was within range the as advisory, maximum and since Hull's by the

statutory

authorized

jury's verdict, we find that the district court fully complied with the Sixth Amendment. 220, 232-44 (2005) See United States v. Booker, 543 U.S. that judge-found sentence

(holding 7

enhancements

mandatorily

imposed

under

the

Guidelines

that

result in a sentence greater than that authorized by the jury verdict or facts admitted by the defendant violate the Sixth Amendment's guarantee of the right to trial by jury); see also Rita v. United States, 551 U.S. 338, 352 (2007) (recognizing that its "Sixth Amendment cases do not automatically forbid a sentencing determined court by a to take and account to v. of factual the 530 matters sentence F.3d 300, not in 312

jury

increase Benkahla,

consequence");

United

States

(4th Cir. 2008) (recognizing only that "the Guidelines must be advisory, not that judges may find no facts"), cert. denied, 129 S. Ct. 950 (2009). We therefore affirm the district court's judgment and deny Hull's motion seeking leave to file a pro se supplemental brief. legal before We dispense with oral argument because the facts and conclusions the court are and adequately argument presented not in the the materials decisional

would

aid

process. AFFIRMED

8