US v. Bryan Morrison

Filing 920100205

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-4266

UNITED STATES OF AMERICA, Plaintiff ­ Appellee, v. BRYAN KENDALL MORRISON, a/k/a Drake, Defendant ­ Appellant.

Appeal from the United States District Court for the Western District of Virginia, at Abingdon. James P. Jones, Chief District Judge. (1:08-cr-00024-jpj-pms-15)

Submitted:

December 29, 2009

Decided:

February 5, 2010

Before MOTZ, DUNCAN, and AGEE, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Charles Y. Sipe, GOODMAN, WEST & FILETTI, PLLC, Charlottesville, Virginia, for Appellant. Julia C. Dudley, United States Attorney, Jennifer R. Bockhorst, Assistant United States Attorney, Abingdon, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Bryan Kendall Morrison was found guilty by a jury of one count of conspiracy to distribute and possess with the

intent to distribute fifty grams or more of cocaine base and five hundred grams or more of cocaine, in violation of 21 U.S.C. § 841(a)(1) (2006) and 21 U.S.C. § 846 (2006). the Government filed a Sentencing Prior to trial, Information,

Enhancement

charging that Morrison had four prior convictions for felony drug offenses that had become final prior to the offense charged in the indictment, and notifying Morrison that upon conviction for the offense in the indictment he would be sentenced to a mandatory term of life imprisonment. At sentencing, the

district court denied Morrison's objection to his presentence report ("PSR"), and sentenced him to life imprisonment pursuant to 21 U.S.C. § 841(b)(1)(A) (2006). On appeal, Morrison

contends that: (1) the district court erred in sentencing him to life in prison; (2) the evidence was insufficient to sustain his conviction; evidence of and his (3) the district felony drug court erred in admitting to

prior

convictions

pursuant

Federal Rule of Evidence 404(b). we affirm.

For the reasons that follow,

Morrison first asserts that he should not have been sentenced to life in prison. Morrison argues that "to count as

a prior conviction [under § 841(b)], a career offender felony 2

predicate must also score criminal history points under [U.S. Sentencing court's Guidelines in Manual] United § 4A1.2," States v. and Mason, cites 284 to F.3d this 555

decision

(4th Cir. 2002), for support.

Under this analysis, Morrison

claims that the first conviction relied upon by the Government cannot count as a predicate conviction because he was a minor at the time of conviction, count and as that one his second and third

convictions Because the

should

only

qualifying that

conviction. fourth

district

court

concluded

Morrison's

prior conviction could not be counted for the purposes of the statutory mandatory minimum under § 841, Morrison's argument, if accepted, would leave only one conviction to count as a

predicate offense. Under 21 U.S.C. § 841(b)(1)(A), "[i]f any person

commits a violation of this subparagraph . . . after two or more prior convictions for a felony drug offense have become final, such person shall be sentenced to a mandatory term of life

imprisonment without release and fined in accordance with the preceding interpreted sentence." the term Whether "felony a district offense" in court properly

drug

§ 841(b)(1)(A)

"involves a pure question of law," which this court reviews de novo. United States v. Burgess, 478 F.3d 658, 661 (4th Cir.

2007), aff'd, 553 U.S. 124 (2008).

3

Section

841

does

not

define

the

term

"felony

drug

offense," but 21 U.S.C. § 802(44) (2006) does, "in plain and unambiguous terms." Burgess, 478 F.3d at 662. Section 802(44)

defines a felony drug offense as "an offense that is punishable by imprisonment for more than one year under any law of the United States or of a State or foreign country that prohibits or restricts anabolic conduct steroids, relating or to narcotic or drugs, marihuana, substances."

depressant

stimulant

21 U.S.C. § 802(44).

As we have previously held, "because the

term `felony drug offense' is specifically defined in § 802(44), and § 841(b)(1)(A) makes use of that precise term, the logical, commonsense way to interpret `felony drug offense' in

§ 841(b)(1)(A) is by reference to the definition in § 802(44)." Burgess, 478 F.3d at 662 (internal quotation marks and

alternations omitted). Despite Morrison's assertions, this court's holding in Mason and the requirements of the U.S. Sentencing Guidelines Manual for designation as a career offender pursuant to § 4B1.1 are inapposite to his sentence. clear at the under sentencing the Rather, the district court made that minimum Morrison sentence was being

hearing

sentenced

mandatory

provision

contained within § 841(b) for defendants with two or more prior felony drug convictions.

4

The district court relied on three convictions in the Superior Court of Alamance County, North Carolina in sentencing Morrison: (1) an April 26, 2000 conviction for possession with the intent to sell or deliver marijuana, in violation of N.C. Gen. Stat. of § 90-95(a) N.C. (2007), Stat. manufacturing marijuana, and in

violation

Gen.

§ 90-95(a)(1),

felony

possession of cocaine, in violation of N.C. Gen. Stat. § 9095(d)(2) (2007); (2) a May 30, 2003 conviction for conspiracy to sell cocaine, in violation of N.C. Gen. Stat. § 90-98 (2007), with an offense date of for September conspiracy 6, to 2002; sell and (3) a in

May 30, 2003

conviction

cocaine,

violation of N.C. Gen. Stat. § 90-98, with an offense date of September 24, 2002. Morrison did not dispute these convictions.

All three of Morrison's convictions qualify as prior felony drug offenses under § 802(44). First, although two of

the convictions occurred on the same day, because they resulted from two separate "episodes of criminality," they constitute two separate convictions for the purpose of sentencing under

§ 841(b)(1)(a). Cir. 1996).

United States v. Ford, 88 F.3d 1350, 1366 (4th

Second, all three convictions were under the laws

of North Carolina that prohibit "conduct relating to narcotic drugs, marihuana, anabolic steroids, or depressant or stimulant substances." 21 U.S.C. § 802(44). Finally, although Morrison

himself was not sentenced to a term of imprisonment for more 5

than

one

year, for

all more

of

the

convictions one year.

were See

punishable Gen.

by

imprisonment

than

N.C.

Stat.

§ 15A-1340.17(c), (d) (2007); United States v. Harp, 406 F.3d 242, 246 (4th Cir. 2005) (explaining that, for the purpose of determining "whether a conviction is for a crime punishable by a prison term exceeding one year," a court must consider "the

maximum aggravated sentence that could be imposed for that crime upon a defendant with the worst possible criminal history"). As

a result, Morrison had a sufficient number of prior felony drug offenses to qualify him for the statutorily prescribed mandatory minimum, and the district court did not err in sentencing

Morrison to life imprisonment. Morrison insufficient to also sustain argues his that the of evidence conspiracy was to

conviction

distribute and to possess with intent to distribute cocaine base and cocaine. In reviewing a challenge to the sufficiency of the

evidence, we review the evidence in the light most favorable to the Government, and ask whether "`any rational trier of facts could have found the defendant guilty beyond a reasonable

doubt.'"

United States v. Harvey, 532 F.3d 326, 333 (4th Cir.

2008) (quoting United States v. Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982)). This court considers the both direct and all Id.

circumstantial

evidence,

and

"allow[s]

[G]overnment

reasonable inferences that could be drawn in its favor." 6

Conflicts in testimony are weighed by the jury, and this court will not weigh the evidence or judge the credibility of the witnesses. Id. To prove conspiracy to distribute and to possess with intent to distribute a controlled substance, the Government must have established "beyond a reasonable doubt that: `(1) an

agreement' to distribute and `possess cocaine with intent to distribute defendant existed knew of between the two or more and persons; (3) the (2) the

conspiracy;

defendant

knowingly and voluntarily became a part of this conspiracy.'" United States v. Yearwood, 518 F.3d 220, 225-26 (4th Cir.)

(quoting United States v. Burgos, 94 F.3d 849, 857 (4th Cir. 1996) (en banc)), cert. denied, 129 S. Ct. 137 (2008).

Nonetheless, because a conspiracy is, "by its very nature . . . clandestine and covert," proving its existence is often done through circumstantial evidence "and the context in which the circumstantial evidence is adduced." Burgos, 94 F.3d at 857.

Accordingly, the Government "need not prove that the defendant knew the particulars of the conspiracy or all of his

coconspirators" or that his connection to the conspiracy was anything more than "slight." Id. to at 858, 861. a The

"[c]ircumstantial conviction need

evidence not

sufficient every

support

conspiracy of

exclude

reasonable

hypothesis

7

innocence,

provided

the

summation

of

the

evidence

permits

a

conclusion of guilt beyond a reasonable doubt."

Id. at 858.

With these standards in mind, the evidence presented at trial established that during the time in question, Morrison and numerous other individuals were involved in selling cocaine in Bristol, that Virginia. he, Kerry Derrick Lee, and Evans, Oedipus a co-conspirator, came to

testified

Mumphrey

Bristol in 2006 and began selling cocaine there, explaining that Lee and Mumphrey would make trips to various locations to obtain large quantities of cocaine, and then return to Bristol where they provided Evans with cocaine to sell and sold cocaine on their own. Mumphrey confirmed Evans's account of the activities

of the three men, stating that the purpose of coming to Bristol was to sell cocaine. Mumphrey testified that Morrison and five

other individuals came with him in 2006 to Bristol to help sell the cocaine faster. He detailed the structure of the

conspiracy, explaining that the cocaine was purchased, cooked up in hotel rooms by those assisting him, and then distributed to two individuals who were responsible for distributing the drugs to the sellers, including Morrison. Mumphrey unequivocally

stated that Morrison "sold a couple of ounces" for him, and that after he did not properly return money from the drug sales, Morrison dealt with Mumphrey directly for the purposes of the sales. 8

Other Jessica

co-conspirators, and Emmanuel

including Morton,

Candace all

Maynard, that

Rodriquez,

testified

Morrison came to Bristol to sell cocaine with other members of the conspiracy and was present in the hotel rooms where the conspirators gathered to sell and obtain the drugs. Morton

testified that he witnessed Mumphrey give cocaine to Morrison. Construing Government, the testimony in the the light most favorable all to the

and

allowing

Government

reasonable

inferences that could be drawn in its favor, the evidence showed that Morrison was involved in an agreement between two or more persons to possess with intent to distribute cocaine, that he was aware of the conspiracy, and that he knowingly and

voluntarily became a part of it.

Accordingly, the evidence was

sufficient to support the jury's verdict. Lastly, Morrison argues that the district court erred when it permitted the jury to hear evidence of his prior felony drug convictions, asserting Rule that 404(b) this of evidence the was unfairly Rules of

prejudicial.

Under

Federal

Evidence, "[e]vidence of other crimes, wrongs, or acts is not admissible" if that evidence is used to prove the character of the defendant "in order to show action in conformity therewith." However, such evidence is admissible for other purposes, "such as proof of motive, opportunity, intent, preparation, plan, Fed.

knowledge, identity, or absence of mistake or accident." 9

R.

Evid.

404(b).

As

it

"is

understood

to

be

a

rule

of

inclusion," the list provided in Rule 404(b) is not exhaustive. United States v. Queen, 132 F.3d 991, 994-95 (4th Cir. 1997). Evidence under Rule 404(b) is admissible if four conditions are satisfied: First, "the evidence must be relevant to an issue, such as an element of an offense, and must not be offered to establish the general character of the defendant. In this regard, the more similar the prior act is (in terms of physical similarity or mental state) to the act being proved, the more relevant it becomes." Second, "the act must be necessary in the sense that it is probative of an essential claim or an element of the offense." Third, "the evidence must be reliable." Finally, "the evidence's probative value must not be substantially outweighed by confusion or unfair prejudice in the sense that it tends to subordinate reason to emotion in the factfinding process." United States Queen, v. Gray, F.3d 405 at F.3d 997) 227, 239 (4th and Cir. 2005)

(quoting omitted).

132

(citations

alterations

Whether a district court properly admitted evidence

under Rule 404(b) is an evidentiary ruling that is reviewed for abuse of discretion. Id. at 238. First, the establishing

All four conditions are satisfied here. evidence was not admitted for the purpose of

Morrison's character.

Morrison was charged with conspiracy to

distribute and to possess with intent to distribute cocaine. The prior convictions that the Government sought to introduce were delivering and sale of cocaine, possession with intent to

10

sell and deliver cocaine, maintaining a vehicle or dwelling or place to sell cocaine, and possession of drug paraphernalia, which the Government argued demonstrated Morrison's knowledge, intent, and absence of mistake with regard to the conspiracy charge. To prove the conspiracy charge against Morrison, the was required to show that Morrison knew of the

Government

conspiracy and knowingly and voluntarily became a part of it. Morrison's offenses, necessary prior including to convictions possession that for and he numerous sale, had were cocaine-related relevant of and these

demonstrate

knowledge

activities, he had the intent to engage in the same activities during the life of the conspiracy, and his engagement in these activities was not accidental or mistaken. The evidence was

reliable, having been introduced during the testimony of Special Agent Todd Brewer, who obtained a certified copy of Morrison's convictions. Finally, the probative value of the evidence was

not substantially outweighed by confusion or unfair prejudice. Although this information was damaging to Morrison, it was not unfairly prejudicial, nor did it "subordinate reason to emotion in the factfinding details that process." were have Gray, provided inflamed 405 F.3d at 239. No

additional convictions

regarding the jury's

Morrison's emotions.

could

Despite Morrison's claims that there was a paucity of physical evidence against him, the testimony of his co-conspirators was 11

sufficient

to

demonstrate

his

active

involvement

in

the

conspiracy, such that the prior conviction evidence cannot be said to be responsible for his conviction. Thus, the district

court did not abuse its discretion in admitting the evidence regarding Morrison's prior convictions under Rule 404(b). Accordingly, we affirm the district court's judgment. We dispense with oral argument because the facts and legal

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

AFFIRMED

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