US v. Corey Troupe

Filing 920081210

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT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Affirmed in part; vacated and remanded in part by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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