US v. Corey Troupe

Filing 920081210


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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-5030 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. COREY JERMAINE TROUPE, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Henry Coke Morgan, Jr., Senior District Judge. (2:07-cr-00046-HCM) Submitted: October 31, 2008 Decided: December 10, 2008 Before NIEMEYER, GREGORY, and AGEE, Circuit Judges. Affirmed in part; vacated and remanded in part by unpublished per curiam opinion. Michael S. Nachmanoff, Federal Public Defender, Keith Loren Kimball, Frances H. Pratt, Assistant Federal Public Defenders, Norfolk, Virginia, for Appellant. Chuck Rosenberg, United States Attorney, Richard D. Cooke, William D. Muhr, Assistant United States Attorneys, Norfolk, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Following a jury trial, Corey Jermaine Troupe was convicted of possession with intent to distribute approximately 53.8 grams of cocaine, in violation of 21 U.S.C.A. 841(a)(1), (b)(1)(C) (West 1999 & Supp. 2008) (Count One); possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. 924(c)(1) (2006) (Count Two); and possession of a firearm by a convicted 924(e)(1) felon, (2006) in (Count violation Three). of 18 U.S.C. district 922(g)(1), The court sentenced Troupe to 164 months in prison on Count One, a consecutive sixty months in prison on Count Two, and 120 months in prison on Count Three, to be served concurrently with the other sentences, for a total of 224 months in prison. timely appealed. At the close of the Government's evidence, Troupe Troupe filed a motion for judgment of acquittal pursuant to Rule 29 of the Federal Rules of Civil Procedure, contending that the Government had failed to establish venue. Government occurred in had presented evidence County, that the Specifically, the relevant but events to Greensville Virginia, neglected establish that Greensville County was in the Eastern District of Virginia. Rather than grant the Rule 29 motion, the district court permitted the Government to reopen its case to establish that Greensville County is in the Eastern District of Virginia. 2 Troupe denying contends the on appeal 29 that the district its court erred by by Rule motion and abused discretion permitting the Government to reopen its case to establish venue. A court may take judicial notice that venue is proper in a particular district. United States v. Kelly, 535 F.3d 1229, 1235-36 (10th Cir. 2008); United States v. Greer, 440 F.3d 1267, 1272 (11th Cir. 2006); cf. United States v. Lavender, 602 F.2d 639, 641 (4th Cir. that 1979) crime (holding that court within may take judicial notice occurred federal jurisdiction). question could In light of the evidence that the events in in Greensville notice County, that the district venue had court been occurred taken have judicial proper established and denied the Rule 29 motion on this basis. Rather however, the than take judicial took notice the of proper venue, of district court additional step permitting the Government to reopen its case to establish venue. A court may allow the Government to reopen its case-in-chief to present additional evidence after a defendant moves for judgment of acquittal, United States v. Gray, 405 F.3d 227, 238 n.5 (4th Cir. 2005), and its decision will be reviewed for abuse of discretion. 1996). United States v. Abbas, 74 F.3d 506, 510 (4th Cir. We find no abuse of discretion in the district court's decision to permit the Government to reopen its case-in-chief to establish proper venue. 3 Next, Troupe argues that the district court improperly permitted the Government to impeach him with a thirteen-year-old conviction, in violation of Rule 609 of the Federal Rules of Evidence. "Rule 609 is an impeachment rule which governs the admissibility of evidence of certain criminal convictions of a witness when offered to impeach that witness by proving character for untruthfulness." 240, 243 (1st Cir. 1994). United States v. Norton, 26 F.3d The rule does not govern the introduction of prior convictions offered to contradict specific testimony. Norton, 26 F.3d at 243-44; United States v. Leavis, Accordingly, when Troupe 853 F.2d 215, 220 (4th Cir. 1988). testified that he was not and never had been a drug dealer, Rule 609 did not prohibit the Government for from introducing with intent his to thirteen-year-old conviction possession distribute cocaine to contradict Troupe's claim. Finally, Troupe asserts that the sentence imposed by the district court was unreasonable because the court miscalculated his guideline range. This applying an court of reviews a The Government agrees. sentence for reasonableness, Gall v. United abuse discretion standard. States, 128 S. Ct. 586, 597 (2007); see also United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). The appellate court first must ensure that the trial court did not commit any procedural error, such as "failing to calculate (or improperly 4 calculating) mandatory, [(2006)] the Guideline to range, treating the [18 the Guidelines as failing factors, consider a U.S.C.] based on 3553(a) clearly selecting sentence erroneous facts, or failing to adequately explain the chosen sentence--including an explanation for any deviation from the Guideline range." Gall, 128 S. Ct. at 597. If the court finds the sentence to be procedurally sound, it then considers the substantive reasonableness of the sentence, taking Id. into consideration the totality of the circumstances. Troupe received a base offense level of twenty-four under U.S. Sentencing Guidelines Manual 2K2.1(a)(2) (2006). The guidelines establish a base offense level of twenty-four "if the defendant committed any part of the subject offense after sustaining at least two felony convictions of either a crime of violence or a controlled substance offense." USSG 2K2.1(a)(2). The application notes direct that only felony convictions that are assigned criminal history points under USSG 4A1.1(a), (b), or (c) should count for determining the base offense level under USSG 2K2.1. USSG 2K2.1 cmt. (n.10). One of the convictions used to establish Troupe's base offense level was a conviction for possession of cocaine with intent to distribute, which is not included within USSG 4A1.1(a), (b), or (c). offense Accordingly, the district court erred by counting this in establishing Troupe's 5 base offense level. Without this error, Troupe's base offense level would have been twenty instead of twenty-four. Troupe's USSG 2K2.1(a)(4)(A). level also was increased by four offense levels pursuant to USSG 2K2.1(b)(6) for possessing the firearm in connection with as in another here, felony, the namely drug is distribution. of a the However, 924(c) where, offense defendant to the convicted offense, addition 922(g) 2K2.1(b)(6) enhancement does not apply. (n.4) With placement in a corrected base offense USSG 2K2.4 cmt. level VI, of twenty and criminal history category Troupe's properly calculated guideline range would have been seventy to eightyseven months' imprisonment, rather than the 140 to 175 month guideline range calculated by the district court. By failing to properly calculate Troupe's guideline range, we hold that the district court committed "significant procedural error." United States v. Matamoros-Modesta, 523 F.3d 260, 263 (4th Cir. 2008). We therefore conclude that the sentence imposed by the district court is unreasonable. Accordingly, we affirm Troupe's convictions, but vacate his sentence and remand for resentencing. We dispense with oral argument because the facts and legal contentions are 6 adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED IN PART; VACATED AND REMANDED IN PART 7

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