US v. Christopher Bell
Filing
UNPUBLISHED AUTHORED OPINION filed. Originating case number: 1:08-cr-00730-MBS-3 Copies to all parties and the district court/agency. [999095805].. [12-4081]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4081
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CHRISTOPHER BELL,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Aiken.
Margaret B. Seymour, Chief District
Judge. (1:08-cr-00730-MBS-3)
Argued:
February 1, 2013
Decided:
April 26, 2013
Before NIEMEYER, DUNCAN, and DIAZ, Circuit Judges.
Affirmed by unpublished opinion.
Judge Niemeyer
opinion, in which Judge Duncan and Judge Diaz joined.
wrote
the
ARGUED: Russell Warren Mace, III, THE MACE FIRM, Myrtle Beach,
South Carolina, for Appellant. John David Rowell, OFFICE OF THE
UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.
ON BRIEF:
William N. Nettles, United States Attorney, Jeffrey
Mikell Johnson, Robert F. Daley, Jr., Assistant United States
Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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NIEMEYER, Circuit Judge:
A
jury
convicted
Christopher
Bell
on
one
count
of
conspiracy to possess with intent to distribute 5 kilograms of
cocaine and 280 grams of cocaine base and on three counts of
possession with intent to distribute a quantity of cocaine.
The
district court sentenced him to 380 months’ imprisonment.
On
appeal, Bell contends (1) that the superseding indictment on
which he was convicted improperly increased the alleged drug
amounts, in retaliation for his successful appeal, allowing him
to
withdraw
an
earlier
guilty
plea
entered
on
the
original
indictment; (2) that the district court erred in denying his
Batson claim; (3) that the district court erred in failing to
suppress
statements
that
he
made
pursuant
to
an
allegedly
involuntary Miranda waiver; and (4) that, in sentencing him, the
district court erred in finding that he was a career offender
and in applying various other sentencing enhancements.
We find
Bell’s arguments unpersuasive and affirm.
I
Bell
which
contends
he
was
prosecutorial
acted
with
first
convicted
that
the
should
vindictiveness.
“actual
He
animus”
or,
2
superseding
have
claims
been
that
indictment
dismissed
the
alternatively,
on
for
prosecutor
that
the
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circumstances
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gave
rise
to
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a
“presumption
of
prosecutorial
vindictiveness.”
The original indictment charged Bell in the first of four
counts with conspiracy to distribute 50 grams or more of cocaine
base.
Bell pleaded guilty to this conspiracy count, and the
district court sentenced him to 380 months’ imprisonment.
After
Bell appealed his conviction, contending that his plea hearing
did
not
comply
with
Rule
11,
the
government
agreed
to
a
withdrawal of his guilty plea and a remand.
After
indictment
remand,
the
containing
original
indictment.
increased
the
drug
grand
the
jury
same
The
four
returned
counts
superseding
quantities
alleged
to
a
superseding
alleged
indictment,
be
in
the
however,
involved
in
the
conspiracy count from 50 grams or more of cocaine base to 5
kilograms or more of cocaine and 280 grams or more of cocaine
base.
It also added allegations of “aiding and abetting” to the
three distribution counts.
Bell claimed that these changes were
made in retaliation for his successful appeal, and he filed a
motion to dismiss the indictment.
The district court denied the
motion, and Bell proceeded to trial.
A jury convicted Bell on
all counts, and the district court again sentenced him to 380
months’ imprisonment.
Bell
actionable
argues
animus
now
that
against
these
him
or
3
circumstances
at
least
reveal
give
rise
either
to
a
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presumption
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of
prosecutorial
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vindictiveness.
The
government
explains that it did not obtain the superseding indictment in
retaliation for Bell’s successful appeal, but rather to equalize
the threshold drug amounts in the superseding indictment with
those alleged in the original indictment in light of the newly
enacted Fair Sentencing Act, which took effect August 3, 2010.
It also points out that on the appeal, it consented to a remand.
We
have
defendant’s
bringing
noted
that
successful
a
more
if
a
exercise
serious
prosecutor
of
his
charge
“responds
right
against
to
to
appeal
him,
he
a
by
acts
unconstitutionally.”
United States v. Wilson, 262 F.3d 305, 314
(4th
To
Cir.
defendant
2001).
must
show
demonstrate
that
the
actual
government
vindictiveness,
harbored
a
“vindictive
animus” and that the superseding indictment was brought “solely
to punish” him.
may
gain
pointing
the
“to
Id. at 316 (emphasis in original).
benefit
of
circumstances
a
presumption
surrounding
of
the
A defendant
vindictiveness
initiation
of
by
the
prosecution and show that they ‘pose a realistic likelihood of
vindictiveness.’”
Id. at 317 (quoting Blackledge v. Perry, 417
U.S. 21, 27 (1974)).
Although
vindictiveness,
Bell
he
provides
claims
that
no
the
evidence
surrounding
of
circumstances
give him the benefit of a presumption, relying on:
timing
of
the
superseding
indictment
4
following
actual
a
(1) the
successful
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appeal; (2) the increased drug quantities alleged in the amended
conspiracy
count;
and
(3)
the
addition
of
the
aiding
and
abetting allegations in the counts charging actual distribution.
We conclude that the district court did not err in denying
Bell’s motion to dismiss based on prosecutorial vindictiveness.
While the indictment was indeed filed after Bell successfully
challenged his plea hearing, the government recognized the error
and
consented
to
the
remand.
Moreover,
the
allegations
increasing the drug amounts comport exactly with new threshold
amounts stated in the Fair Sentencing Act.
Act
(“FSA”)
altered
the
threshold
The Fair Sentencing
quantity
of
cocaine
base
necessary to trigger the mandatory sentencing minimums in 21
U.S.C. § 841(b).
Just as the initial indictment alleged the
necessary threshold amounts under pre-FSA law -- 50 grams or
more of cocaine base, see 21 U.S.C. § 841(b) (2006) -- the
superseding indictment alleged the threshold amounts in the FSA
-- 5 kilograms or more of cocaine and 280 grams or more of
cocaine base, see 21 U.S.C. § 841(b) (2012).
We conclude that
the district court did not err in finding that the superseding
indictment was brought not because of Bell’s successful appeal
but because of a change in the law.
Also, the addition of the aiding and abetting allegations
to
the
distribution
against Bell.
counts
did
not
add
additional
charges
See United States v. Johnson, 537 F.2d 1170 (4th
5
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Cir. 1976).
that
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Rather, the allegations simply provided a structure
facilitated
the
government’s
ability
previously alleged counts against Bell.
changes
were
not
prosecution.”
“sufficiently
to
prove
the
We conclude that these
suggestive
of
vindictive
Wilson, 262 F.3d at 317.
II
Bell next contends that the government violated Batson v.
Kentucky, 476 U.S. 79 (1986), in exercising its seven peremptory
juror strikes against African Americans.
When the government
made
motion,
the
strikes,
government
“to
strikes.”
Bell
state
When
the
made
any
a
Batson
[race]
court
neutral
directed
asking
reasons
the
for
request
to
the
those
the
government, the government responded in detail, giving several
reasons
for
government
each
ha[d]
strike.
The
articulated
court
race
then
neutral
strike[s]” and therefore denied the motion.
the
district
court
erred
in
not
found
reasons
that
for
“the
the
Bell contends that
comparing
the
government’s
proffered reasons for the strikes to similarly situated jurors
who had not been the subject of a preemptory strike, citing
Miller-El v. Dretke, 545 U.S. 231 (2005), and United States v.
Barnette, 644 F.3d 192 (4th Cir. 2011).
Bell’s argument, however, fails to recognize that he was
required,
as
a
condition
of
requesting
6
a
comparative-juror
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analysis, to identify comparative jurors for the district court.
See Barnette, 644 F.3d at 205 (requiring a comparative juror
analysis where “the struck black potential jurors bore strong
similarities as well as some differences to nonblack jurors who
were permitted to serve”) (construing Miller-El, 545 U.S. at
247).
that
Here, Bell failed to identify a single nonstruck juror
would
call
into
doubt
the
reasons
proffered
by
the
government.
Bell also contends that the government’s exercise of all of
its
seven
“created
preemptory
an
inference
challenges
of
against
purposeful
African-Americans
discrimination,”
shifting
the burden to the government to demonstrate that its reasons
were
not
conduct
a
pretext.
actually
Regardless
gave
rise
to
of
such
whether
an
the
government’s
inference,
the
court
nonetheless did call on the government to provide explanations
for
each
strike.
And,
with
respect
to
each
strike,
the
government gave race-neutral explanations, which included past
convictions,
lack
of
education,
association
with
witnesses,
demeanor, and adverse responses on juror questionnaires.
The
district court found the government’s explanations credible and
race-neutral, and, based on this record, we cannot find that the
district court clearly erred.
7
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III
Bell also contends that the district court erred in denying
his motion to suppress a statement that he made to Special Agent
Matthew E. Morlan of the ATF during an interview on July 25,
2008.
At
the
hearing
on
Bell’s
suppression
motion,
Special
Agent Morlan testified that before he conducted the interview,
he read a Miranda form to Bell line-by-line and that Bell signed
the waiver voluntarily.
After waiving his Miranda rights and
indicating that he wanted to speak with officers, Bell provided
a rundown of his narcotics dealings.
Morlan testified that Bell
spoke lucidly and did not appear to be under the influence of
alcohol or drugs.
Bell, however, gave a different account, suggesting that
his
Miranda
waiver
was
not
voluntary
because
he
had
used
cocaine, pills, and alcohol on the day of the interview.
Bell
testified first that Special Agent Morlan “just slid [him] the
paper and said, ‘sign it,’ and . . . walked off.”
On cross-
examination, however, Bell asserted that he did not remember
having the interview or signing the form because he had been
under the influence of alcohol and drugs.
After
government’s
Bell’s
the
hearing,
witnesses
motion
to
the
credible
suppress.
district
and,
We
8
on
have
court
that
found
basis,
reviewed
the
the
denied
record
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carefully and cannot conclude that the district court clearly
erred in its factual finding.
IV
Finally, Bell contends that during sentencing, the district
court
improperly
applied
Sentencing Guidelines.
four
enhancements
authorized
by
the
Based on our review of the record, we
find each of Bell’s arguments unpersuasive.
First, Bell contends that the district court should not
have designated him a career offender under U.S.S.G. § 4B1.1
because the sentences for the predicate offenses were not shown
to have been imposed within ten years of the “commencement of
the instant offense,” as required by U.S.S.G. § 4A1.2(e)(2).
The predicate offenses were Bell’s conviction on January 16,
1997, for distributing crack cocaine near a public park, and his
conviction
on
August
6,
1998,
for
possession
distribute crack cocaine near a school.
the
cocaine-distribution
commenced
well
within
predicate
offenses.
conspiracy
the
ten-year
Bell’s
with
intent
to
The record shows that
alleged
window
coconspirators
in
this
following
in
this
case
the
case
testified to dealing drugs with Bell since 2005, and Bell’s own
statements admitted to buying cocaine as far back as 1999.
The
district court thus did not clearly err in finding that the
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conspiracy in this case began before the ten-year window closed
on the predicate offenses.
Bell also argues that the district court erred in applying
an enhancement for his leadership role in the conspiracy, under
U.S.S.G.
§
3B1.1(b).
He
insists
that
his
companions
involved in nothing but a conspiracy of “users.”
were
The evidence,
however, showed that Bell actively managed multiple members of
the conspiracy in the sale of both cocaine and cocaine base.
Even though the district court did not explicitly address each
of the stated Guidelines’ factors to be considered in applying
the enhancement, we readily discern from the court’s comments
that it evaluated Bell’s role within the conspiracy in light of
those factors.
Bell next challenges the application of an obstruction-ofjustice enhancement under U.S.S.G. § 3C1.1, based on a telephone
call he made to a prospective witness.
As Bell and his attorney
were preparing for jury selection, the government provided a
list of its witnesses to Bell and his attorney, which included
the name of Tonya Kneece.
Several hours later, Special Agent
Morlan received a voicemail from Kneece, who was very upset and
crying.
Kneece
informed
Special
Agent
Morlan
that
Bell
had
called her on the telephone to say he was very angry at her.
Bell told Kneece that he had seen her name on the witness list
and that he “knew everything.”
He told her that he thought they
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were friends and then abruptly hung up.
Kneece told Special
Agent Morlan that she was concerned for her safety.
Bell argues
that these facts reveal “no threat by [him] to influence Kneece
and therefore, no intent to obstruct justice.”
however,
does
not
require
the
showing
of
an
Intimidation or unlawful influence suffices.
3C1.1, Application Note 4(A).
The enhancement,
actual
threat.
See U.S.S.G. §
There can be little doubt that
Kneece was intimidated by the call, as she told Special Agent
Morlan that she was afraid for her safety because of it.
conclude
that
this
evidence
was
sufficient
to
justify
We
the
district court’s finding of intimidation.
Finally, Bell challenges the parole-violation enhancement
under U.S.S.G. § 4A1.1(d), arguing that his term of parole fixed
by any earlier sentence had expired before this conspiracy in
this case had begun.
This argument, however, is not supported
by
August
the
record.
possession
school.
with
On
intent
to
6,
1998,
distribute
Bell
crack
was
convicted
cocaine
near
of
a
He was released on parole on September 9, 2001, which
expired on June 8, 2005.
This termination date of parole came
after Bell had resumed trafficking in cocaine and cocaine base
in 2004 and 2005.
Accordingly, we conclude that the district
court did not err in applying this enhancement.
In sum, the judgment of the district court is
AFFIRMED.
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