US v. Vladimir Mazur
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:12-cr-00011-GEC-6 Copies to all parties and the district court/agency. [999355743].. [13-4605]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4605
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
VLADIMIR PETROVICH MAZUR, a/k/a Vladimir Mazur,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg.
Glen E. Conrad, Chief
District Judge. (5:12-cr-00011-GEC-6)
Submitted:
April 29, 2014
Before WYNN and
Circuit Judge.
FLOYD,
Decided:
Circuit
Judges,
and
May 14, 2014
HAMILTON,
Senior
Affirmed in part; vacated and remanded by unpublished per curiam
opinion.
David L. Parker, DAVID L. PARKER, PC, Harrisonburg, Virginia,
for Appellant.
Timothy J. Heaphy, United States Attorney,
Harrisonburg, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
A federal jury convicted Vladimir Petrovich Mazur of
conspiracy to distribute 100 grams of heroin, in violation of 21
U.S.C. § 846 (2012); stealing firearms from a licensed dealer,
in violation of 18 U.S.C. § 922(u) (2012); possession of stolen
firearms, in violation of 18 U.S.C. § 922(j) (2012); and use of
a
firearm
in
furtherance
of
a
drug
trafficking
violation of 18 U.S.C. § 924(c) (2012).
offense,
in
The district court
sentenced Mazur to a total of 141 months of imprisonment and he
now appeals.
For the reasons that follow, we affirm Mazur’s
convictions but vacate the sentence and remand for resentencing.
Mazur first argues on appeal that the district court
erred
in
denying
his
motion
to
suppress
statements
of
his
codefendant that the Government first disclosed during trial.
“In reviewing a district court’s ruling on a motion to suppress,
we
review
factual
findings
conclusions de novo.”
for
clear
error,
and
its
legal
United States v. Cain, 524 F.3d 477, 481
(4th Cir. 2008) (citation omitted); see also United States v.
Caro, 597 F.3d 608, 616 (4th Cir. 2010) (reviewing an alleged
Brady * violation de novo).
When the district court has denied a
defendant’s suppression motion, we construe the evidence in the
*
Brady v. Maryland, 373 U.S. 83 (1963).
2
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light
most
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favorable
to
the
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government.
United
States
v.
Grossman, 400 F.3d 212, 216 (4th Cir. 2005).
In order to establish a Brady violation, Mazur must
demonstrate
either
evidence
that
because
was
the
it
evidence
is
at
issue
exculpatory
suppressed
by
the
or
is
favorable
impeaching;
government;
and
to
him,
that
the
that
he
was
prejudiced by that suppression.
Strickler v. Greene, 527 U.S.
263,
evidence
281-82
(1999).
Favorable
is
material
if
the
defendant can demonstrate a reasonable probability that, had the
evidence been disclosed, the outcome of the proceeding would
have been different.
Caro, 597 F.3d at 619.
We have thoroughly
reviewed the record and conclude that the district court did not
err in denying Mazur’s motion to suppress the statements.
Mazur
next
argues
that
the
Government
failed
to
present sufficient evidence to support the conviction for the
drug conspiracy.
We review a district court’s decision to deny
a Fed. R. Crim. P. 29 motion for a judgment of acquittal de
novo.
United States v. Smith, 451 F.3d 209, 216 (4th Cir.
2006).
A defendant challenging the sufficiency of the evidence
faces a heavy burden.
United States v. Beidler, 110 F.3d 1064,
1067 (4th Cir. 1997).
The verdict of a jury must be sustained
“if, viewing the evidence in the light most favorable to the
prosecution,
the
verdict
evidence.’”
Smith,
451
is
F.3d
3
supported
at
216
by
‘substantial
(citations
omitted).
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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.”
Id.
(internal
quotation
marks
and
citation
omitted).
Furthermore, “[t]he jury, not the reviewing court, weighs the
credibility of the evidence and resolves any conflicts in the
evidence
presented.”
quotation
marks
Beidler,
and
citation
110
F.3d
omitted).
at
1067
(internal
“Reversal
for
insufficient evidence is reserved for the rare case where the
prosecution’s failure is clear.”
Id. (internal quotation marks
and citation omitted).
In order to prove that Mazur conspired to distribute
heroin, the Government needed to show (1) an agreement between
two or more persons, (2) that Mazur knew of the agreement, and
(3) that Mazur knowingly and voluntarily joined the conspiracy.
United States v. Burgos, 94 F.3d 849, 857 (4th Cir. 1996) (en
banc).
However, the Government was not required to make this
showing through direct evidence.
In fact, “a conspiracy may be
proved wholly by circumstantial evidence,” and therefore may be
inferred from the circumstances presented at trial.
(citations omitted).
Id. at 858
Moreover, while evidence of a buyer-seller
relationship alone is insufficient to establish a conspiracy,
such
evidence
“is
at
least
relevant
(i.e.
probative)
issue of whether a conspiratorial relationship exists.”
4
on
the
United
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States v. Hackley, 662 F.3d 671, 679 (4th Cir. 2011) (internal
quotation marks and citation omitted).
With these principles in
mind, we conclude that while there was not overwhelming evidence
of
Mazur’s
participation
in
the
conspiracy,
the
Government
presented sufficient evidence from which the jury could conclude
that Mazur was guilty of the conspiracy offense.
See Hackley,
662 F.3d at 675-81.
Mazur also challenges his sentence on appeal.
Mazur
argues that the district court erred in declining to reduce his
offense level for his minor role in the conspiracy, and that the
court erred in calculating the drug weight under the Guidelines.
In
reviewing
the
district
court’s
calculations
under
the
Guidelines, “we review the district court’s legal conclusions de
novo
and
its
factual
findings
for
clear
error.”
United
States v. Manigan, 592 F.3d 621, 626 (4th Cir. 2010) (internal
quotation marks and citation omitted); see also United States v.
Hicks, 948 F.2d 877, 882 (4th Cir. 1991) (“The calculation of
the amount of drugs which results in the establishment of the
base offense level is a factual determination subject to review
only for clear error.”) (citation omitted).
We will “find clear
error only if, on the entire evidence, we are left with the
definite and firm conviction that a mistake has been committed.”
Manigan, 592 F.3d at 631 (internal quotation marks and citation
omitted).
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A defendant who is only a “minor participant” in a
criminal
activity
may
have
his
offense
level
reduced
by
two
levels.
U.S. Sentencing Guidelines Manual (“USSG”) § 3B1.2(b)
(2012).
This applies to a defendant who is “substantially less
culpable than the average participant,” “but whose role could
not be described as minimal.”
n.5.
USSG § 3B1.2(b), cmt. n.3(A) &
In deciding whether the defendant played a minor role, the
“critical inquiry is thus not just whether the defendant has
done
fewer
bad
acts
than
his
co-defendants,
but
whether
the
defendant’s conduct is material or essential to committing the
offense.”
2001)
United States v. Pratt, 239 F.3d 640, 646 (4th Cir.
(internal
quotation
marks
and
citation
omitted).
The
defendant has the burden of showing by a preponderance of the
evidence that he played a minor role in the offense.
States v. Akinkoye, 185 F.3d 192, 202 (4th Cir. 1999).
United
We have
thoroughly reviewed the record and conclude that the district
court did not clearly err in denying a reduction in offense
level for a minor role.
With respect to the drug weight, “[w]here there is no
drug seizure or the amount seized does not reflect the scale of
the offense, the court shall approximate the quantity of the
controlled substance.”
purposes,
the
USSG § 2D1.1 cmt. n.5.
government
must
prove
the
“For sentencing
drug
quantity
attributable to a particular defendant by a preponderance of the
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United States v. Bell, 667 F.3d 431, 441 (4th Cir.
2011) (citation omitted).
In addition, a district court must
provide an adequate explanation of its drug weight calculation,
to
allow
for
appellate
meaningful
court
rationale.’”
need
appellate
‘not
guess
review,
at
the
“such
that
district
the
court’s
Id. at 442 (quoting United States v. Carter, 564
F.3d 325, 220 (4th Cir. 2009)).
We conclude that the court
failed to provide a sufficient explanation for its drug weight
calculation to provide for meaningful appellate review.
The
court failed to explain how it arrived at the amount of heroin
attributable
to
instead
the
to
Mazur
at
the
presentence
sentencing
report
(to
hearing,
which
deferring
the
parties
objected), which similarly failed to specify the factual support
for the amount of heroin attributed to Mazur.
Accordingly, we affirm Mazur’s convictions, but vacate
the sentence and remand for further proceedings consistent with
this opinion.
We dispense with oral argument because the facts
and legal contentions are adequately presented in the materials
before
this
court
and
argument
would
not
aid
the
decisional
process.
AFFIRMED IN PART;
VACATED AND REMANDED
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