US v. Larry Sellers

Filing 402838053

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:08-cr-00052-JPB-JSK-1 Copies to all parties and the district court/agency. [998356707] [09-4332, 09-4335]

US v. Larry Sellers

Doc. 402838053

Case: 09-4332

Document: 39

Date Filed: 06/10/2010

Page: 1

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4332 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. LARRY SELLERS, a/k/a L, Defendant - Appellant.

No. 09-4335 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. BRANDON PUGH, Defendant - Appellant.

Appeals from the United States District Court for the Northern District of West Virginia, at Clarksburg. John Preston Bailey, Chief District Judge. (1:08-cr-00052-JPB-JSK-1; 1:08-cr-00052JPB-JSK-3) Submitted: April 12, 2010 Decided: June 10, 2010

Before TRAXLER, Chief Judge, and WILKINSON and DUNCAN, Circuit Judges.

Dockets.Justia.com

Case: 09-4332

Document: 39

Date Filed: 06/10/2010

Page: 2

Affirmed by unpublished per curiam opinion. Pamela R. Folickman, THE LAW OFFICE OF PAMELA R. FOLICKMAN, PLLC, Fairmont, West Virginia; Joshua P. Sturm, LAW OFFICE OF JOSHUA P. STURM, Ripley, West Virginia, for Appellants. Betsy C. Jividen, Acting United States Attorney, John C. Parr, Assistant United States Attorney, Wheeling, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit.

2

Case: 09-4332

Document: 39

Date Filed: 06/10/2010

Page: 3

PER CURIAM: Following a two-day bench trial, the district court convicted Larry Sellers and Brandon Pugh of conspiracy to

distribute more than five grams of cocaine base, in violation of 21 U.S.C.A. §§ 841(b)(1)(B), 846 (West 1999 & Supp. 2009) (Count One); and aiding and abetting the possession with intent to

distribute more than five grams of cocaine base, in violation of 21 U.S.C.A. §§ 841(a)(1), (b)(1)(B) (West 1999 & Supp. 2009) (Count Seven). Sellers was also convicted of maintaining a

drug-involved premises, in violation of 21 U.S.C.A. § 856(a)(2) (West Supp. 2009) (Count Eight). Sellers received concurrent

sentences of 292 months on Counts One and Seven and 240 months on Count Eight. Pugh received concurrent sentences of 144

months on Counts One and Seven.

Finding no error, we affirm.

On appeal, both Defendants challenge the sufficiency of the evidence also and the reasonableness the district of their sentences. of his

Sellers

challenges

court's

denial

motion to depose Ashley Adkins, a co-conspirator who pleaded guilty and testified for the Government at trial. The criminal charges center around Sellers' drug

trafficking in Morgantown, West Virginia. May of 2008, Sellers supplied Adkins Adkins acted

Between February and crack a cocaine on

with as

multiple

occasions.

runner

between

individuals she knew who wanted crack cocaine, and her source, 3

Case: 09-4332

Document: 39

Date Filed: 06/10/2010

Page: 4

Sellers.

According to Adkins, she would call Sellers for crack

and he would either come to her with the crack or she would hire a cab or have another crack user drive her to Sellers' apartment complex in Morgantown. Adkins would buy between $50 and $200

worth of crack from Sellers, while the taxi driver or customer waited in a car. During the course of the conspiracy, Adkins

made purchases for herself and several customers. One of Adkins' customers was a confidential informant who made several recorded buys from Adkins. resulted in Adkins' arrest. On May 8, One of those buys Adkins called

2008,

Sellers to set up a purchase.

Sellers, however, was out of

town, and arranged to have his friend, Brandon Pugh, who was staying at his apartment for the weekend, handle the drug

transaction. and Pugh.

Following the transaction, police arrested Adkins Sellers was later arrested in Charlotte, North

Carolina.

Sellers and Pugh were indicted on the above charges,

and Adkins was indicted on Count One and several counts related to her transactions with the confidential informant. Adkins

pleaded guilty and was sentenced to forty-one months in prison. As part of her plea agreement she agreed to testify against Sellers and Pugh. At Adkins and trial, the the Government relied on as testimony well as from law-

confidential

informant,

enforcement officials, taxi drivers familiar with Adkins, and 4

Case: 09-4332

Document: 39

Date Filed: 06/10/2010

Page: 5

several smaller-use drug users.

The Government also presented

physical evidence found during the execution of a search warrant at Sellers' apartment. Law-enforcement officials found twenty-

seven grams of cocaine, two digital scales, plastic bags, and $4100 cash. Law enforcement officials also seized Pugh's cell

phone, which contained photos of the money and drugs found in the apartment. At trial, Pugh testified and denied selling

crack to Adkins.

Pugh claimed he received $150 from her, which Both

he said was repayment for a loan she owed to Sellers.

Sellers and Pugh essentially argued that Adkins was responsible for the drugs in the apartment and for engaging in drug

trafficking during the time in question. First, Sellers claims the district court erred by not granting his motion to depose co-defendant Ashley Adkins.

Sellers' claim lacks merit.

Sellers argues he was not able to

cross-examine Adkins effectively without a pretrial deposition. Sellers claims this failure violated his right to exculpatory evidence under Brady v. Maryland, 373 U.S. 83 (1963), Giglio v. United States, 405 U.S. 150 (1972), and the Jencks Act, 18

U.S.C. § 3500 (2006).

He is incorrect.

As an initial matter,

no statute or case gives Sellers the authority to depose Adkins, who voluntarily Sellers chose does not not to point speak to with any Sellers' attorney.

Second,

potential

exculpatory

evidence that Adkins possessed. 5

Sellers had a copy of Adkins'

Case: 09-4332

Document: 39

Date Filed: 06/10/2010

Page: 6

plea agreement and was able to challenge her credibility based on the concessions she received as part of the plea. Neither

the Federal Rules of Criminal Procedure nor this court's case law require the district court to allow a defendant to depose a witness who is available for trial and voluntarily elects not to speak to defendant's counsel. Therefore, the district court did

not abuse its discretion in denying Sellers' motion to depose Ashley Adkins. Sellers and Pugh both challenge the sufficiency of the evidence supporting their convictions. In assessing the

sufficiency of the evidence presented in a bench trial, we "must uphold a guilty verdict if, taking the view most favorable to the Government, there is substantial evidence to support the verdict." Cir. Elliott v. United States, 332 F.3d 753, 760-61 (4th "Substantial finder of fact evidence" could means accept "evidence as that a

2003).

reasonable

adequate

and

sufficient to support a conclusion of a defendant's guilt beyond a reasonable doubt." (4th Cir. 1996). On trial, that appeal, Adkins' Sellers and Pugh of argue, as they did at United States v. Burgos, 94 F.3d 849, 862

explanation and

Sellers'

drug-trafficking to support used their and

operation

was

uncorroborated We disagree.

inadequate Adkins

convictions.

While

both

distributed drugs, she could not have conducted any business 6

Case: 09-4332

Document: 39

Date Filed: 06/10/2010

Page: 7

without

Sellers,

who

was

her

supplier.

As

demonstrated

by

numerous witnesses, Adkins did not generally have crack cocaine available for sale and had to make arrangements with Sellers if she wanted to distribute drugs. During the course of the

conspiracy, one cab driver estimated that he drove Adkins to Sellers' apartment building between 200 and 300 times. cab drivers and drug users similarly corroborated Other Adkins'

frequent drug purchases from Sellers. also supported by the parties' cell

These transactions are phone records, showing

frequent calls consistent with drug trafficking. Finally, Sellers and Pugh challenge the calculation

and reasonableness of their sentences.

It is now well settled

that, after Booker v. United States, 543 U.S. 220 (2005), this court reviews a sentence for reasonableness, applying an abuse of discretion standard. Gall v. United States, 552 U.S. 38, 51

(2007); see also United States v. Layton, 564 F.3d 330, 335 (4th Cir.), cert. denied, 130 S. Ct. 290 of (2009). the This review and

requires

appellate

consideration

both

procedural

substantive reasonableness of a sentence.

Gall, 552 U.S. at 51.

In determining procedural reasonableness, this court considers whether the district court properly calculated the defendant's advisory Guidelines range, considered the 18 U.S.C. § 3553(a) (2006) factors, analyzed any arguments presented by the parties, and sufficiently explained the 7 selected sentence. Id.

Case: 09-4332

Document: 39

Date Filed: 06/10/2010

Page: 8

"Regardless below, record or an

of

whether

the

district sentence,

court it

imposes must on

an

above, on the

within-Guidelines individualized

place the

assessment

based

particular

facts of the case before it."

United States v. Carter, 564 F.3d We

325, 330 (4th Cir. 2009) (internal quotation marks omitted). next assess into the the substantive the of reasonableness `totality any of of the from the

sentence,

"taking including range.'"

account extent

circumstances, the Guidelines

variance

United States v. Pauley, 511 F.3d 468, 473 (4th Cir.

2007) (quoting Gall, 552 U.S. at 51). The Defendants raise challenges to both the procedural and substantive the trial reasonableness court of their sentences. the Sellers amount of

claims

erroneously

calculated

drugs involved and erroneously imposed a two-point leadership enhancement. Sellers' claims, even if they had merit, would

have no effect on the calculation of his adjusted offense level because he was sentenced as a career offender. The district

court made this clear, and Sellers did not object to the career offender designation. the length Further, of his to the extent his that is Sellers without

challenges merit.

sentence,

claim

The district court considered the 18 U.S.C. § 3553(a)

factors and found Sellers' conduct in this offense, as well as his previous felony convictions, justified a sentence in the middle of the Sentencing Guidelines range. 8 On appeal, Sellers

Case: 09-4332

Document: 39

Date Filed: 06/10/2010

Page: 9

has

not

rebutted

the

presumption

that

his

within-Guidelines

sentence was reasonable. Pugh also challenges the calculation of his sentence. He claims the district court failed to consider his relatively minor role in the offense when evaluating the § 3553(a) factors. Additionally, Pugh claims the district court erred in converting the cash found in the apartment to cocaine base and failing to deduct legitimate funds from the drug proceeds. We find that the district court properly considered Pugh's involvement in the offense, which included supplying Similarly, properly did, in

cocaine base to Adkins when Sellers was in Florida. in fashioning Pugh's sentence, felony the district and

court then

considered

Pugh's

prior

convictions

fact, impose a downward variance of twenty-four months from the bottom of the properly calculated Guidelines range. Pugh does not challenge the district court's Further, to

authority

convert some of the money to drugs, only the court's decision to convert the money to cocaine base rather than marijuana and the court's failure to deduct $2900 in allegedly legitimate proceeds from the $4100. Considering that this case principally involved

9

Case: 09-4332

Document: 39

Date Filed: 06/10/2010

Page: 10

crack and that Pugh handled and photographed all the money, we find the district court did not err. For the above reasons, we affirm the convictions and sentences for Sellers and Pugh. 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

In reviewing a district court's application of the Sentencing Guidelines, we review the district court's factual findings for clear error and its legal conclusions de novo. United States v. Sosa-Carabantes, 561 F.3d 256, 259 (4th Cir. 2009). At the sentencing hearing in Pugh's case, the district court supported its decision to hold Pugh responsible for sixty grams of cocaine stating: "[w]ith regard to relevant conduct, he is only being held responsible for the conduct related to that night. Yes, most of the money was in Mr. Sellers' room but it is clear from the marked buy money that Mr. Pugh put it there." 10