US v. Tony Puryear

Filing 920090702

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-4951

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. TONY L. PURYEAR, Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Henry E. Hudson, District Judge. (3:08-cr-00077-HEH-1)

Submitted:

June 11, 2009

Decided:

July 2, 2009

Before MICHAEL and DUNCAN, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Robert L. Flax, Richmond, Virginia, for Appellant. Dana J. Boente, Acting United States Attorney, Peter S. Duffey, Assistant United States Attorney, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Tony L. Puryear appeals his convictions and 108 month sentence for distribution of crack cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)(iii), (b)(1)(C) (2006). counseled appellate brief raises ten claims: Puryear's Puryear's

convictions violated Apprendi v. New Jersey, 530 U.S. 466 (2000) (Claim 1); his convictions violated the Commerce Clause (Claim 2); the judge erred in excluding evidence of the prior

conviction of a trial witness, Alice Chambers (Claim 3); the district court should have excluded evidence of purchases made by Chambers's friend, Earl (Claim 4); the court erred in denying Puryear's motions for judgment of acquittal (Claim 5) and for a mistrial (Claim 6); the evidence was insufficient to support Puryear's conviction (Claim 7); Puryear's conviction should have been reversed as he was a victim of entrapment (Claim 8);

Puryear's house should not have been forfeited (Claim 9); and Puryear's sentence is unreasonable (Claim 10). While Puryear's counsel contends that Claim 7 is

meritorious, he asserts that the remaining issues are raised pursuant to Anders v. California, 386 U.S. 738 (1967). Further,

as to Claims 1-6 and 8-9, counsel explicitly concedes that each issue is without merit. Because we conclude that counsel's

effort to combine a meritorious claim with claims conceded to be lacking in merit does not comport with the Anders framework, see 2

id.

at

744-45 finds this

(setting "case appeal to

forth be

procedure

to

be

followed we

when to the

counsel consider

wholly to

frivolous"), Anders.

decline

pursuant

Accordingly,

judgment of the district court is affirmed as to Claims 1-6 and 8-9. As to Claim 10, however, while it is generally identified

as submitted pursuant to Anders, counsel does not concede that it is without merit. Accordingly, out of an abundance of

caution, we consider that Claim 10 (a challenge to Puryear's sentence), along with Claim 7 (an attack on the sufficiency of the evidence), are properly before the Court. claims to be without merit, however, we affirm. Finding these

I. Sufficiency of the Evidence "A defendant challenging the sufficiency of the

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 a sufficiency of the evidence challenge by whether, viewing the evidence in the light most

determining

favorable to the Government, any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. 2005). In order to prove distribution of crack cocaine, the Government must show: (1) knowing or intentional distribution 3 United States v. Collins, 412 F.3d 515, 519 (4th Cir.

of

crack

cocaine,

and

(2)

knowledge,

at

the

time

of

distribution, that the substance distributed was a controlled substance. Cir. 2003). In this case, the evidence is more than sufficient to support Puryear's convictions of eleven counts of distribution of crack cocaine. each of During her the trial, from Chambers Puryear, described, in See United States v. Brower, 336 F.3d 274, 276 (4th

detail,

purchases

specifically

recalling the dates on which they occurred and the particular conversations that went on during each one. Sound and video

recordings were played before the jury, depicting several of the controlled searched buys. by law Before and after each buy, The Chambers was

enforcement

officers.

lead

detective

involved in the investigation testified as to the procedures taken to ensure that the eleven drug quantities Chambers bought from Puryear remained unaltered from the time they were taken from Chambers to the time they were tested at the lab. eleven samples tested positive for crack cocaine. we find that substantial evidence supports All

Accordingly, Puryear's

convictions. II. Reasonableness of Sentence As Puryear attempted to submit this issue pursuant to Anders, it is arguable that he is conceding that this issue, like the other eight mentioned 4 above, is without merit.

However, in his brief, he fails to explicitly state that the district court's sentence was reasonable, or that an appeal of this issue is lacking in merit. the fact that Puryear sold Instead, he first contends that drugs for profit was not a

sufficiently aggravating factor to merit a sentence at the top of the guidelines range. Alternatively, Puryear argues that if

he had only been convicted of Counts 9 and 10, he would only have been responsible sentencing for range 8.642 of grams of crack, to yielding an

adversary

sixty-three

seventy-eight

months' imprisonment. Puryear's second contention, an apparent attack on the procedural reasonableness of his sentence, is dependent upon our finding that the evidence was insufficient to support Puryear's convictions of the eleven counts of crack distribution totaling forty-two grams. However, as the evidence did support such a

finding, Puryear's second contention is without merit. "Regardless of whether the sentence imposed is inside or outside the the [g]uidelines under range, an the appellate court must

review

sentence

abuse-of-discretion

standard." Appellate

Gall v. United States, 128 S. Ct. 586, 597 (2007).

courts are charged with reviewing sentences for reasonableness, with appellate consideration of both the procedural and

substantive reasonableness of a sentence.

Id. at 594, 597.

5

In assess

determining the

procedural court

reasonableness, properly

we

first the

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). We may afford sentences that fall within the properly calculated guidelines range a presumption of reasonableness on appeal. See Gall, 128 S. Ct. at 597. This presumption can be Pauley, 511 F.3d at 473 (quoting Gall,

rebutted only by showing "that the sentence is unreasonable when measured against the § 3553(a) 375, factors." (4th Cir. United 2006) States v.

Montes-Pineda,

445

F.3d

379

(internal

quotation marks and citation omitted). After Puryear's reasonable. reviewing is the the both trial transcript, and we find that

sentence First,

procedurally court

substantively calculated

district 6

properly

Puryear's advisory guidelines sentence at eighty-seven to 108 months' imprisonment. Then, after giving both Puryear and his

counsel a chance to speak, the district court determined the appropriate sentence. The court indicated that it considered

the 18 U.S.C. § 3553(a) (2006) sentencing factors, specifically the nature and circumstances of the offense, the characteristics of the defendant, and the need to promote respect for the law. Moreover, advisory guidelines because range, the we sentence afford it fell a within the of

presumption

reasonableness on appeal. Puryear believes that his

See Gall, 128 S. Ct. at 597. sale of drugs for pure

Though

commercial

profit was insufficient justification for a sentence at the top of the guidelines range, Puryear's subjective disagreement with the judge's rationale is inadequate to rebut the presumption of reasonableness. The judge listed several reasons in support of

his sentence, including the fact that Puryear did not have a single, isolated conviction for drug distribution, but instead demonstrated a recurring pattern of illegal behavior.

Accordingly, we find that Puryear's sentence was reasonable. Therefore, we affirm the judgment of the district

court and deny Puryear's motions to appoint new counsel and to file a pro se brief. facts and legal We dispense with oral argument as the are adequately presented in the

contentions

7

materials before the court and further argument would not aid the decisional process. AFFIRMED

8