US v. Linwood Parker

Filing 920090522

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-4472

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. LINWOOD COLA PARKER, a/k/a Lenny, Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Rebecca Beach Smith, District Judge. (2:07-cr-00068-RBS-JEB-1)

Submitted:

April 22, 2009

Decided:

May 22, 2009

Before MOTZ, GREGORY, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Marc Seguinót, SEGUINÓT & ASSOCIATES, P.C., Dunn Loring, Virginia, for Appellant. Dana J. Boente, Acting United States Attorney, Darryl J. Mitchell, Assistant United States Attorney, Norfolk, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Linwood Cola Parker appeals his conviction after a

jury trial of conspiracy to distribute and possess with intent to distribute cocaine, in violation of 21 U.S.C. § 846 (2006) (Count 1); possession with intent to distribute cocaine, in

violation of 21 U.S.C. § 841(a)(1) (2006) (Count 3); nine counts of using communication facilities to commit violations of the Controlled Substances Act, in violation of 21 U.S.C. § 843(b) (2006) (Counts 4-12); and felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) (2006) (Count 13). sentenced to a total of 276 months' imprisonment. Parker raises three arguments on appeal: He was

We affirm. (1) evidence

presented at trial was insufficient to convict him of conspiracy to distribute or possess with the intent to distribute cocaine; (2) promises of leniency in exchange for testimony made by the Government to witnesses violated 18 U.S.C. § 201(c)(2) (2006); and (3) his sentence was unreasonable.

I. "A

Sufficiency of the Evidence challenging the sufficiency of the

defendant

evidence faces a heavy burden."

United States v. Foster, 507

F.3d 233, 245 (4th Cir. 2007), cert. denied, 128 S. Ct. 1690 (2008). We review challenges to the sufficiency of the evidence

by determining whether, viewing the evidence in the light most 2

favorable to the Government, any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. United States v. Collins, 412 F.3d 515, 519 (4th Cir. In

2005); see Glasser v. United States, 315 U.S. 60, 80 (1942).

doing so, we review both direct and circumstantial evidence, and give the government all reasonable inferences from the facts shown to those sought to be established. United States v.

Harvey, 532 F.3d 326, 333 (4th Cir. 2008).

We will uphold the

jury's verdict if substantial evidence supports it, and will reverse only in those rare cases of clear failure by the

prosecution.

Foster, 507 F.3d at 244-45.

In order to support Parker's conviction for conspiracy to distribute and to possess with intent to distribute drugs, the Government had to prove: "(1) that [Parker] entered into an

agreement with one or more persons to engage in conduct that violated 21 U.S.C. §[] 841(a)(1) . . . ; (2) that [he] had knowledge of that conspiracy; and (3) that [he] knowingly and voluntarily participated in the conspiracy." Mastrapa, 509 F.3d 652, 657 (4th Cir. United States v. 2007); see United

States v. Burgos, 94 F.3d 849, 857 (4th Cir. 1996) (en banc). Parker contends that the evidence was insufficient to support his conviction because, at most, it established no more than a buyer/seller relationship between himself and others.

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However, we specifically rejected such an argument in United States v. Reid, 523 F.3d 310 (4th Cir.) (cert. denied, 129 S. Ct. 663 (2008), finding that "[e]vidence of a buy-sell transaction coupled with a substantial quantity of drugs, would support a reasonable Id. inference at 317 that (internal the parties were marks,

coconspirators." alteration and

quotation

citation

omitted).

Similarly,

continued

relationships and repeated drug transactions between parties are indicative of a conspiracy, particularly when the transactions involve substantial amounts of drugs. At trial, several Id. described Parker's One

witnesses

purchases and sales of substantial quantities of cocaine.

witness estimated that he distributed approximately ninety to 100 kilograms this of cocaine was to Parker as over a a ten-year period.

Though

witness

acting

confidential

informant

during part of that time, and thus was incapable of being party to a conspiracy, the witness testified about conversations held between Parker and others, in which Parker arranged to sell the drugs he was getting from the witness. Another witness

testified that he supplied Parker with dozens of kilograms of cocaine per year between 1992 and 1996, and then another eight to nine kilograms that he between 2003 and 2006. A third of sold witness and

testified powder

repeatedly Miller,

bought which 4

quantities he then

crack to

cocaine

from

other

individuals. relationships

Accordingly, we find that the continued, lengthy between Parker and the testifying parties,

combined with the substantial quantity of drugs involved, was more than sufficient to support Parker's conviction for

conspiracy to distribute or possess with intent to distribute cocaine.

II.

Promises of Leniency to Testifying Witnesses 201(c)(2), 18 U.S.C. or prohibits promis[ing] "directly anything or of

Section indirectly[]

giv[ing],

offer[ing],

value to any person, for or because of the testimony under oath or affirmation given or to be given by such person as a witness upon a trial, hearing, or other proceeding, before any court." Parker contends by in that promising exchange the Government or violated 18 U.S.C. to

§ 201(c)(2) witnesses

leniency their

favorable

treatment We

for

testimony.

explicitly

rejected this argument in United States v. Richardson, 195 F.3d 192, 197 (4th Cir. 1999) ("[T]he government does not violate § 201(c)(2) by granting immunity or leniency or entering into plea agreements to obtain testimony".). Accordingly, Parker's

contention is foreclosed by Circuit authority.

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III. Reasonableness of Sentence Finally, unreasonable. whether the Parker contends that his sentence is

As noted by the Supreme Court, "[r]egardless of sentence imposed is inside or outside the

[g]uidelines range, the appellate court must review the sentence under an abuse-of-discretion standard." 128 S. Ct. 586, 597 Id. at (2007). 594, We 597. of Gall v. United States, review sentences for

reasonableness. requires appellate

Reasonableness both the

review and

consideration

procedural

substantive reasonableness of a sentence. In assess determining the procedural court

Id. at 597. we first the

reasonableness, properly

whether

district

calculated

defendant's advisory guidelines range. 97.

Gall, 128 S. Ct. at 596-

We then determine whether the district court failed to the 18 U.S.C. § 3553(a) (2006) factors and any

consider

arguments presented by the parties, treated the guidelines as mandatory, selected a sentence based on "clearly erroneous

facts," or failed to sufficiently explain the selected sentence. Id. at 597; United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). Finally, we review the substantive reasonableness of the "taking into account the `totality of the

sentence,

circumstances, including the extent of any variance from the [g]uidelines range.'" 128 S. Ct. at 597). 6 Pauley, 511 F.3d at 473 (quoting Gall,

We calculated

afford

sentences range a

that

fall

within of

the

properly

guidelines

presumption

reasonableness.

See Gall, 128 S. Ct. at 597.

Such a presumption can be rebutted

only by showing "that the sentence is unreasonable when measured against the § 3553(a) factors." United States v. Montes-Pineda,

445 F.3d 375, 379 (4th Cir. 2006) (internal quotation marks and citation omitted). Here, Parker concedes there were no procedural errors in the sentencing and the district court correctly calculated the guideline range. the record reflects Further, contrary to Parker's assertions, that the district court was exceedingly

thorough in its substantive analysis of the § 3553(a) factors. The district court judge explicitly considered, on the record, 18 U.S.C. § 3553(a)(1), (2), (3), and (4) in their entirety

before imposing the sentence. well-reasoned and extensive. the district court gave is

The district court's analysis was That Parker subjectively believes insufficient to weight overcome to possible the a

mitigating appellate sentence

factors,

insufficient of

either to

presumption within the

reasonableness range

attributable or the

guidelines

substantive

reasonableness apparent from the district court's analysis and application of the § 3553(a) factors when sentencing Parker.

Therefore, we find that the district court did not abuse its discretion in sentencing Parker. 7

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

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