US v. Nyron Nichols

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying pro se supplemental Brief [998325646-2]; denying Motion to amend/correct [998326361-2]; denying Motion to file supplemental brief(s) [998326354-2], denying Motion to file supplemental brief(s) [998325645-2] Originating case number: 7:07-cr-00006-gec-1 Copies to all parties and the district court/agency. [998594177].. [08-4739]

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Date Filed: 05/20/2011

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 08-4739

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
NYRON JOEL NICHOLS,
Defendant - Appellant.

Appeal from the United States District Court for the Western
District of Virginia, at Roanoke.
Glen E. Conrad, Chief
District Judge. (7:07-cr-00006-gec-1)

Submitted:

April 15, 2011

Decided:

May 20, 2011

Before WILKINSON, NIEMEYER, and AGEE, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Michael T. Hemenway, THE LAW OFFICES OF MICHAEL T. HEMENWAY,
Charlottesville, Virginia, for Appellant.
Timothy J. Heaphy,
United States Attorney, R. Andrew Bassford, Assistant United
States Attorney, Roanoke, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Nyron

Joel

Nichols

was

convicted

by

a

jury

of

conspiracy to possess with intent to distribute fifty grams or
more

of

powder,

cocaine
in

base,

violation

and

of

a

21

measurable

U.S.C.

§§

quantity

841(a)(1),

of

cocaine

846

(2006),

three counts of distributing a measurable quantity of cocaine
powder, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C), and
possessing
offense

a

firearm

in

furtherance

of

using

or

carrying

firearm

and/or

a

a

drug

trafficking

during

and

in

relation to a drug trafficking crime, in violation of 18 U.S.C.
§ 924(c)(1)(A)

(2006).

The

district

court

imposed

a

life

sentence on the offenses involving cocaine base, with concurrent
240-month sentences on the offenses involving cocaine powder,
and a consecutive sixty-month sentence on the firearm offense.
We affirm.
On appeal, Nichols first contends that the indictment
was defective.

Our review of the record leads us to conclude

that Nichols’ claim is without merit, and in any event, because
Nichols failed to assert this claim before trial, it is waived.
Fed. R. Crim. P. 12(b)(3), (e).
Nichols
forfeiture

order

next
was

contends

improperly

that
entered

the

district

because

none

court’s
of

the

offenses of conviction were forfeiture related, and the jury did
not decide the forfeiture issue.
2

A defendant who is convicted

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of a drug trafficking offense shall forfeit property obtained as
a result of the offense.

21 U.S.C. § 853 (a)(1); United States

v.

267-68

McHan,

although

345
a

F.3d

262,

defendant

has

a

(4th

right

Cir.

to

2003).

have

a

Moreover,

jury

decide

a

forfeiture issue, the defendant must affirmatively assert that
right.

Fed.

R.

Crim.

P.

32.2(b)(5).

After

reviewing

the

record, we conclude that Nichols was convicted of an offense
requiring

forfeiture

of

property

obtained

in

connection

with

that offense, and waived his right to have a jury decide the
forfeiture issue.
Next,
evidence

Nichols

supporting

challenges

his

the

convictions.

sufficiency
We

review

de

of

the

novo

a

district court’s denial of a Fed. R. Crim. P. 29 motion for a
judgment of acquittal.

United States v. Green, 599 F.3d 360,

367

denied,

(4th

Cir.),

cert.

131

S.

Ct.

271

(2010).

A

defendant challenging the sufficiency of the evidence “bears a
heavy burden.”
(4th Cir. 1997).

United States v. Beidler, 110 F.3d 1064, 1067
A jury verdict must be sustained “if, viewing

the evidence in the light most favorable to the prosecution, the
verdict is supported by ‘substantial evidence.’”
v.

Smith,

451

F.3d

209,

216

(4th

Cir.

2006).

United States
Substantial

evidence is “evidence that a reasonable finder of fact could
accept as adequate and sufficient to support a conclusion of a
defendant’s guilt beyond a reasonable doubt.”
3

Id. (internal

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quotation marks omitted).
weighs

the

Page: 4 of 11

“[T]he jury, not the reviewing court,

credibility

of

the

evidence

conflicts in the evidence presented.”
(internal quotation marks omitted).

and

resolves

any

Beidler, 110 F.3d at 1067
“Reversal for insufficient

evidence is reserved for the rare case where the prosecution’s
failure is clear.”

Id. (internal quotation marks omitted).

To establish Nichols’ guilt under 21 U.S.C. § 846, the
evidence

must

show

that:

(1)

an

agreement

to

possess

and

distribute cocaine powder and cocaine base existed between two
or more people; (2) Nichols knew of the conspiracy; and (3)
Nichols

knowingly

voluntarily

became

a

part

of

the

United States v. Kellam, 568 F.3d 125, 139 (4th

conspiracy.
Cir.),

and

cert.

denied,

130

S.

Ct.

657

(2009).

To

establish

Nichols’ guilt under 21 U.S.C. § 841(a)(1), the evidence must
show

that:

(1)

Nichols

possessed

cocaine

powder

and

cocaine

base; (2) he had knowledge that he possessed cocaine powder and
cocaine

base;

and

(3)

he

intended

to

distribute

the

cocaine

powder and cocaine base.

United States v. Randall, 171 F.3d

195, 209 (4th Cir. 1999).

Our review of the record leads us to

conclude
Nichols

that
was

the

guilty

evidence
beyond

overwhelmingly
a

reasonable

established

doubt

of

the

that
drug

offenses.
To establish Nichols’ guilt under 18 U.S.C. § 924(c),
the

evidence

must

show

that

Nichols:
4

(i)

committed

a

drug

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trafficking crime; and (ii) possessed a firearm in furtherance
of that crime.
Nichols

18 U.S.C. § 924(c)(1)(A).

committed

several

drug

As previously noted,

trafficking

offenses.

However,

whether a firearm furthered, advanced, or helped forward one of
Nichols’ drug trafficking crimes is a question of fact.

United

States v. Lomax, 293 F.3d 701, 705 (4th Cir. 2002).

After

reviewing the record, we conclude that the evidence likewise
overwhelmingly

established

that

Nichols

was

guilty

beyond

a

reasonable doubt of the § 924(c) offense.
Nichols

next

claims

that

several

items

were prejudicial and improperly admitted at trial.

of

evidence

We review a

district court’s evidentiary rulings for abuse of discretion.
United States v. Blake, 571 F.3d 331, 350 (4th Cir. 2009), cert.
denied, 130 S. Ct. 1104 (2010).

A district court abuses its

discretion when its decision to admit evidence was arbitrary and
irrational.

United States v. Weaver, 282 F.3d 302, 313 (4th

Cir. 2002).

A district court’s evidentiary rulings are subject

to review for harmless error under Fed. R. Crim. P. 52.
States v. Abu Ali, 528 F.3d 210, 231 (4th Cir. 2008).

United
Evidence

is unfairly prejudicial when “there is a genuine risk that the
emotions of a jury will be excited to irrational behavior, and
this

risk

is

disproportionate

to

the

probative

value

of

the

offered evidence.”

United States v. Williams, 445 F.3d 724, 730

(4th

(internal

Cir.

2006)

quotation
5

marks,

citation,

and

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alteration

Date Filed: 05/20/2011

omitted).

Our

review

of

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the

record

leads

us

to

conclude that the district court did not abuse its discretion in
admitting the challenged evidence.
Nichols
prosecutorial

next

claims

misconduct

in

that

the

offering

Government

perjured

committed

testimony.

In

support of his claim that the Government’s witnesses perjured
themselves,

he

points

to

alleged

inconsistencies

between

the

witnesses’ trial testimony and various other pieces of evidence
in the case.

Despite Nichols’ effort to characterize this claim

as one of prosecutorial misconduct, it is, at bottom, nothing
more

than

an

witnesses.

attack

on

the

credibility

of

the

Government’s

By convicting Nichols, however, the jury found that

the Government’s witnesses were credible, and we do not review
the jury’s credibility determinations on appeal.

United States

v. Wilson, 484 F.3d 267, 283 (4th Cir. 2007).
Nichols

next

claims

that

the

incarcerated

witnesses

that testified at his trial were all kept in the same holding
cell at the courthouse, thereby giving them the opportunity to
discuss and coordinate their testimony, in violation of the Fed.
R. Evid. 615. Federal Rule of Evidence 615 provides in part that
“[a]t the request of a party the court shall order witnesses
excluded

so

that

they

cannot

hear

the

testimony

of

other

witnesses, and it may make the order of its own motion.”

We

conclude that nothing in the rule requires that witnesses be
6

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separated before or after their testimony.

Accordingly, we find

Nichols’ claim without merit.
Nichols next claims that the Government violated his
constitutional rights by failing to turn over witness statements
and other evidence that was allegedly exculpatory in nature.

To

establish a violation pursuant to Brady v. Maryland, 373 U.S. 83
(1963),

a

defendant

evidence

that

material

as

reviewing

was

to

show

favorable

his

the

must

guilt

record,

to

or

we

that
the

the

defendant

innocence.
conclude

Government

Id.

that

and
at

withheld
that

87.

Nichols

was

After

has

not

established that the Government failed to turn over exculpatory
evidence.
Nichols also argues that his sentence is procedurally
and substantively unreasonable.

This Court reviews a sentence

for reasonableness, using an abuse of discretion standard of
review.

Gall v. United States, 552 U.S. 38, 50 (2007).

The

first step in this review requires the court to ensure that the
district
United

court

States

committed
v.

Evans,

no
526

significant
F.3d

155,

161

procedural
(4th

Cir.

error.
2008).

Procedural errors include “failing to calculate (or improperly
calculating) the Guidelines range or failing to consider the §
3553(a)factors.”

United States v. Carter, 564 F.3d 325, 328

(4th

(internal

Cir.

2009)

quotation

marks

omitted).

The

district court must make an individualized assessment based on
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the facts presented by applying the relevant § 3553(a) factors
to the circumstances of the case.
court

then

considers

the

Gall, 552 U.S. at 51.

substantive

reasonableness

of

The
the

sentence, taking into account the totality of the circumstances.
Id.
Nichols challenges the district court’s determination
of

the

drug

weight

attributable

to

him,

and

claims

that

it

considered unreliable evidence in making its determination.

A

district court’s finding regarding drug weights is factual in
nature and is therefore reviewed for clear error.
v. Fletcher, 74 F.3d 49, 55 (4th Cir. 1996).

United States

In conducting this

review, we give due regard to the district court's opportunity
to judge the credibility of witnesses.
(2006).

18 U.S.C. § 3742(e)

Credibility determinations therefore receive deference

unless they are without support in the record.

United States v.

Brown, 944 F.2d 1377, 1379-80 (7th Cir. 1991).
district

court

is

permitted

to

consider

any

reliable evidence before it imposes sentence.
Bowman, 926 F.3d 380, 381 (4th Cir. 1991).

Moreover, a
relevant

and

United States v.

After reviewing the

record, we conclude that the district court properly grouped the
drug counts and did not commit clear error in determining the
drug weights attributable to Nichols.
Nichols next challenges the district court’s finding
that he obstructed justice, warranting a two-level enhancement
8

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to his offense level.
findings,

including

obstruction

of

Page: 9 of 11

We review a district court’s factual

those

justice

that

serve

enhancement

as

a

under

basis
U.S.

for

Sentencing

Guidelines Manual (“USSG”) § 3C1.1, for clear error.
States v. Kiulin, 360 F.3d 456, 460 (4th Cir. 2004).
the

district

court’s

Guidelines de novo.

legal

interpretation

of

the

an

United

We review
Sentencing

United States v. Dawkins, 202 F.3d 211, 214

(4th Cir. 2000).
A two-level enhancement in a defendant’s offense level
is authorized if the defendant attempts to suborn perjury, or
unlawfully influences, or attempts to influence a witness in
connection with a sentencing hearing.
4(a), (b).

USSG § 3C1.1, cmt. n.

We find that the district court properly determined

that Nichols had obstructed justice, warranting the two-level
enhancement in his offense level.
Nichols next argues that the district court improperly
found that he had a leadership role in the drug conspiracy,
warranting

a

three-level

enhancement

to

his

offense

level.

Under USSG § 3B1.1(b), a three-level enhancement is authorized
“[i]f the defendant was a manager or supervisor (but not an
organizer or leader) and the criminal activity involved five or
more participants or was otherwise extensive.”

The enhancement

under § 3B1.1(b) is justified if the defendant supervises at
least one person, and the criminal activity involved five or
9

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more participants.
(4th Cir. 2000).

Page: 10 of 11

United States v. Bartley, 230 F.3d 667, 673
Our review of the record leads us to conclude

that the district court properly applied USSG § 3B1.1(b), and
correctly increased Nichols offense level by three levels.
Accordingly,

we

conclude

that

the

properly

calculated

Nichols’

Guidelines

parties’

arguments,

made

individualized

an

district

range,

court

considered

assessment

on

the
the

facts presented, and adequately explained the reasons for the
chosen

sentence.

Thus,

Nichols’

sentence

was

procedurally

reasonable.
Nor

was

sentence

A

unreasonable.

the
sentence

within

imposed
the

substantively

properly

Guidelines range is presumptively reasonable.
Allen, 491 F.3d 178, 193 (4th Cir. 2007).

calculated

United States v.
Here, we find that

the district court correctly determined that Nichols’ Guidelines
range

was

life

imprisonment,

rebut

the

presumption

of

and

that

Nichols

reasonableness

has

accorded

failed
a

to

sentence

within the Guidelines.
Nichols also claims that the sixty-month sentence for
the § 924(c) offense was improperly imposed because he received
a

higher

mandatory

conviction.

minimum

Nichols’

sentence

argument

is

on

a

different

foreclosed

by

the

count

of

Supreme

Court’s recent decision in Abbott v. United States, 131 S.Ct. 18

10

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(2010).

Date Filed: 05/20/2011

Page: 11 of 11

Finally, Nichols’ argument that twelve jurors were not

present at all times during trial is without merit.
Accordingly, we affirm the district court’s judgment.
We deny Nichols’ motion to file a pro se supplemental brief.
dispense

with

oral

argument

because

the

facts

and

We

legal

contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.

AFFIRMED

11