US v. Lewis Hardy

Filing 920090417

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4172 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. LEWIS R. HARDY, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Walter D. Kelley, Jr., District Judge. (2:07-cr-00120-WDK-JEB-1) Submitted: March 27, 2009 Decided: April 17, 2009 Before GREGORY, SHEDD, and DUNCAN, Circuit Judges. Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion. Michael S. Nachmanoff, Federal Public Defender, Frances H. Pratt, Keith Loren Kimball, Assistant Federal Public Defenders, Norfolk, Virginia, for Appellant. D. Monique Broadnax, Special Assistant United States Attorney, Norfolk, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Lewis R. Hardy was convicted after a jury trial of conspiracy to possess with intent to distribute heroin and cocaine base ("crack"), in violation of 21 U.S.C. 841(a)(1), 846 (2006); possession with intent to distribute heroin and crack, in violation of 841(a)(1); possession with intent to distribute heroin and crack within 1000 feet of a school, in violation of 21 U.S.C. 841(a)(1), 860 (2006); and possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. 924(c) (2006). a total of 185 months' imprisonment Hardy was sentenced to and now appeals. His attorney has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967). We affirm Hardy's Hardy has filed a pro se supplemental brief. * conviction, but vacate the sentence, and remand for resentencing. In the Anders brief, counsel first questions whether the evidence was sufficient to prove that Hardy possessed the narcotics within 1000 feet of a school. A defendant challenging United The the sufficiency of the evidence faces a heavy burden. States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997). * In his pro se brief, Hardy questions the validity of the indictment and the district court's refusal of the jury's request to review the transcript of four witnesses' testimony. We have considered Hardy's arguments in light of the applicable legal standards and find the claims to be without merit. 2 verdict of a jury 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). evidence that a reasonable United States v. Smith, 451 "[S]ubstantial evidence [i]s of fact could accept as finder adequate and sufficient to support a conclusion of a defendant's guilt beyond a reasonable doubt." Id. "Reversal for insufficient evidence is reserved for the rare case where the prosecution's failure is clear." Beidler, 110 F.3d at 1067 (internal quotation marks and citation omitted). We have reviewed the record and find that it contains sufficient within evidence feet to a prove that Hardy The possessed the drugs of 1000 of school. proper measurement distance for purposes of 860 is a straight line; that is, an "as the crow flies" measurement. See, e.g., United States v. In this case, the Henderson, 320 F.3d 92, 103 (1st Cir. 2003). distance from the location where Hardy possessed the drugs and the school was only 450 feet, well within 860's to 1000-foot this as a requirement. evidence, sufficient the to Furthermore, jury support could since have Hardy failed rebut it reasonably on this accepted charge Hardy's guilt beyond reasonable doubt. Cf. United States v. Glover, 153 F.3d 749, 755 & n.5 (D.C. Cir. 1998) (finding evidence sufficient where an 3 officer offered uncontested testimony that he measured the distance himself). Counsel next questions whether the district court committed plain error in calculating Hardy's criminal history category under the guidelines. in an Anders brief, counsel Although this issue is presented concludes that it is, in fact, meritorious. Counsel acknowledges, however, that he failed to object to the guidelines calculation before the district court. Because this issue was not raised below, we review for plain error. See Fed. R. Crim. P. 52(b); United States v. Olano, 507 To prevail on a claim of unpreserved U.S. 725, 731-32 (1993). error, Hardy must show that error occurred, that it was plain, and that it affected his substantial rights. 732. to Olano, 507 U.S. at Furthermore, this court will not exercise its discretion correct such error or at unless it "seriously reputation affect[s] of the fairness, integrity Id. public 732 judicial marks and proceedings." (internal quotation citations omitted). In calculating a defendant's criminal history category under the guidelines, two points are added for each conviction for offenses that occurred prior to the defendant turning eighteen that resulted in a period of confinement for more than sixty days, from which the defendant was released within five years of the present offense conduct. 4 See U.S. Sentencing Guidelines Manual ("USSG") 4A1.2(d)(2)(A) (2007). Furthermore, the guidelines provide that prior sentences are to be counted separately if there are any intervening arrests between the offenses. intervening arrest, See USSG 4A1.2(a)(2). prior sentences are "If there is no separately counted unless (A) the sentences resulted from offenses contained in the same charging instrument; or (B) the sentences were imposed on the same day." Id. If there was no intervening arrest and either of those conditions is met, the prior sentences are to be counted as a single sentence in calculating a defendant's criminal history category. In this case, Hardy's criminal history contained three separate juvenile to there offenses two that met the criteria under the guidelines However, receive were no criminal history arrests points between each. these intervening offenses, and Hardy was sentenced for all three on the same day. Therefore, these sentences should have been counted as a single prior sentence. The district court instead counted them separately, resulting in a total of four criminal history points being erroneously history attributed category to Hardy. III to IV This and increased increased to 108 his his criminal from applicable guidelines range from eighty-seven months' imprisonment to 100 to 125 months' imprisonment. that this constituted plain 5 error that We conclude Hardy's affected substantial rights and that should be noticed on appeal. United States v. Ford, 88 F.3d 1350, 1355-56 (4th Cir. 1996). See We have examined the entire record in this case in accordance with the requirements of Anders and have found no other meritorious issues for appeal. his We therefore and affirm for Hardy's conviction, vacate sentence, remand resentencing. (2007). We See Gall v. United States, 128 S. Ct. 586, 597 further deny Hardy's motion for grand jury transcripts. writing, of This court requires that counsel inform Hardy, in the right to petition the Supreme Court of the United States for further review. If Hardy requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move in this court for leave to withdraw from representation. Counsel's motion must We dispense with contentions the court are and state that a copy thereof was served on Hardy. oral argument because in the the facts and legal before adequately presented materials argument would not aid the decisional process. AFFIRMED IN PART, VACATED IN PART, AND REMANDED 6

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