US v. Oshay Jone

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 7:13-cr-00038-SGW-1. Copies to all parties and the district court. [999633569]. [14-4508, 14-4523, 14-4524, 14-4525]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4508

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
OSHAY TERRELL JONES,
Defendant - Appellant.

No. 14-4523

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KEARRAH MONIQUE JONES,
Defendant - Appellant.

No. 14-4524

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
QWANESHA TYANN MORRIS,

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Defendant - Appellant.

No. 14-4525

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DOMINIQUE MAURICE JONES,
Defendant - Appellant.

Appeals from the United States District Court for the Western
District of Virginia, at Roanoke.
Samuel G. Wilson, District
Judge.
(7:13-cr-00038-SGW-1;
7:13-cr-00038-SGW-3;
7:13-cr00038-SGW-4; 7:13-cr-00038-SGW-2)

Submitted: June 30, 2015

Decided:

August 4, 2015

Before SHEDD, FLOYD, and THACKER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Krysia Carmel Nelson, LAW OFFICES OF KRYSIA CARMEL NELSON, PLC,
Charlottesville, Virginia; John E. Davidson, DAVIDSON & KITZMAN,
PLC,
Charlottesville,
Virginia;
Michelle
C.F.
Derrico,
COPENHAVER, ELLETT, CORNELISON & DERRICO, Roanoke, Virginia;
Melissa W. Friedman, Roanoke, Virginia, for Appellants. Anthony
P. Giorno, Acting United States Attorney, R. Andrew Bassford,
Assistant United States Attorney, Roanoke, Virginia; Leslie R.
Caldwell, Assistant Attorney General, Sung-Hee Suh, Deputy
Assistant Attorney General, Thomas E. Booth, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, DC, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
A
Jones,

jury

convicted

Oshay
“the

(collectively

Jones,

Kearrah

Joneses”)

Jones,

and

Dominique

Qwanesha

Morris

(together “Appellants”) of conspiracy to possess with intent to
distribute 28 grams or more of cocaine base, in violation of 21
U.S.C. §§ 841(a), 846 (2012).

The district court sentenced each

appellant to a below-Guidelines sentence: Oshay and Dominique to
280

months’

imprisonment

each,

Kearrah

to

120

imprisonment, and Morris to 60 months’ imprisonment.
also

ordered

the

Joneses

to

forfeit

$220,000

and

months’
The court

Morris

to

forfeit $40,000.
Appellants

assert

that

the

district

court

erred

in:

(1) refusing their proposed jury instruction that drug quantity
was an element of the offense, but sua sponte instructing on a
lesser
without

included

offense;

adequate

(4) imposing
sentences.

(2) admitting

foundation;

procedurally

telephone

(3) ordering

and

recordings

forfeiture;

substantively

and

unreasonable

For the reasons that follow, we affirm.
I.

Appellants

first

challenge

the

district

court’s

instructions to the jury regarding the drug weight attributable
to

the

conspiracy.

They

contend

that

drug

quantity

was

an

element necessary for conviction pursuant to Alleyne v. United
States, 133 S. Ct. 2151, 2158 (2013), which held that any fact
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that

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increases

a

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defendant’s

statutory

considered an element of the offense.

minimum

sentence

is

Appellants also contend

that the court’s sua sponte lesser included offense instruction
was error because it was not requested by any of the parties,
they lacked sufficient notice of the lesser offense to prepare
an adequate defense, and it interfered with their all-or-nothing
trial strategy—that is, they were either guilty as explicitly
charged in the superseding indictment or not guilty at all.
“We review for abuse of discretion the district court’s
denial of [a] proposed jury instruction[].”
Sonmez,

777

discretion

F.3d
exists

684,

688

where

(4th

the

Cir.

proposed

United States v.

2015).

An

instruction

abuse

of

“(1) [was]

correct, (2) [was] not substantially covered by the charge that
the district court actually gave to the jury, and (3) involved
some

point

so

important

that

the

failure

to

give

instruction[] seriously impaired the defendant’s defense.”
We

conclude

that

the

district

court

did

not

the
Id.

abuse

its

discretion because drug quantity is not an element that must be
established for conviction.
F.3d

756,

770-71

(4th

See United States v. Hickman, 626

Cir.

2010)

(vacating

conviction

and

sentence for conspiracy to distribute and possess with intent to
distribute one kilogram or more of heroin, and remanding with
directions to the district court for “entry of judgment against
Hickman

under

Count

I

of

the
4

indictment

for

conspiracy

to

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distribute and to possess with intent to distribute heroin in
the amount of one hundred grams or more”).
Moreover, a “defendant may be found guilty of . . . [a
lesser] offense necessarily included in the offense charged.”
Fed. R. Crim. P. 31(c).

“A defendant charged with conspiracy

to . . . distribute an amount of a controlled substance can, if
the

evidence

warrants,

be

convicted

of

one

of

the

lesser

included offenses based on a smaller amount of the substance.”
United States v. Cabrera-Beltran, 660 F.3d 742, 753 (4th Cir.
2011)

(internal

quotation

marks

omitted).

Parties

may

not

reject a lesser included offense instruction, “provided that the
evidence would permit a jury rationally to find the defendant
guilty of the lesser offense and acquit him of the greater.”
Lespier, 725 F.3d at 450 (internal quotation marks and brackets
omitted).
II.
Appellants next challenge the district court’s admission of
audio recordings of jailhouse telephone calls between Oshay and
Dominique and their associates.

We review a district court’s

evidentiary rulings for abuse of discretion.

United States v.

Taylor, 754 F.3d 217, 226 n.* (4th Cir.), petition for cert.
filed, __ S. Ct. __ (Sept. 4, 2014) (No. 14-6166).
discretion

occurs

arbitrarily

or

only

when

irrationally

in
5

the

district

admitting

An abuse of

court

evidence.”

“acted
United

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States v. Williams, 445 F.3d 724, 732 (4th Cir. 2006) (internal
quotation marks omitted).

The hearsay rule allows admission of

records of a regularly conducted activity “if[] (A) the record
was made at or near the time by . . . someone with knowledge;
(B) the record was kept in the course of a regularly conducted
activity of a business . . . ; [and] (C) making the record was a
regular practice of that activity.”

Fed. R. Evid. 803(6).

The

nature of the record may be established by “the custodian or
another qualified witness.”

Fed. R. Evid. 803(6)(D).

The term “qualified witness” is broadly construed.

See

United States v. Franco, 874 F.2d 1136, 1139-40 (7th Cir. 1989)
(noting liberal interpretation of term by Third, Sixth, Seventh,
and Eighth Circuits).

A qualified witness is not required to

“have personally participated in or observed the creation of the
document.”
1986).

United States v. Moore, 791 F.2d 566, 574 (7th Cir.

Nor is he required to “know who actually recorded the

information.”

United States v. Dominguez, 835 F.2d 694, 698

(7th Cir. 1987).

Further, “[t]here is no requirement that the

witness . . . be able to personally attest to its accuracy.”
United States v. Duncan, 919 F.2d 981, 986 (5th Cir. 1990).
Appellants
Lieutenant

contend

Frank

that

Harris,

the

the

court

improperly

assistant

officer, was a qualified witness.

chief

We disagree.

found

that

correctional
The record

reveals that Harris was in charge of the phone recordings as the
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jail’s custodian of records, explained how the recordings were
made, and demonstrated his understanding of the system and how
the recordings were stored and retrieved.

Thus, we discern no

abuse of the court’s discretion.
III.
Appellants next assert that the district court erred in
ordering

forfeiture,

arguing

support in the record.

the

court’s

determinations

lack

In an appeal from criminal forfeiture

proceedings, we review the district court’s findings of fact for
clear error and conclusions of law de novo.
Herder,

594

convicted

F.3d

of

a

352,
drug

363

(4th

trafficking

Cir.

United States v.

2010).

offense

A

must

forfeit

property constituting the proceeds of the offense.
§ 853(a)

(2012).

To

obtain

forfeiture,

the

defendant
any

21 U.S.C.

Government

must

establish by a preponderance of the evidence a nexus between the
property for which it seeks forfeiture and the crime.
Crim. P. 32.2(b)(1)(A).

Fed. R.

Where, as here, the Government’s theory

is that the property constitutes proceeds of the offense, a “but
for” test is applied.
F.3d

1293,

conclude

1313

that

See, e.g., United States v. DeFries, 129

(D.C.

the

Cir.

district

1997)

(collecting

court’s

cases).

determination

of

We
the

forfeiture judgment amounts was supported by the record and is
free of error.

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IV.
Finally, the Joneses challenge the reasonableness of their
sentences,

which

we

review

for

abuse

of

discretion.

United

States v. Howard, 773 F.3d 519, 527-28 (4th Cir. 2014).

We

first review for procedural error, such as improper calculation
of

the

Guidelines

range,

failure

to

consider

the

18

U.S.C.

§ 3553(a) (2012) sentencing factors, selecting a sentence based
on clearly erroneous facts, or failure to adequately explain the
sentence.

Howard, 773 F.3d at 528.

procedural

error,

we

examine

Absent any significant

substantive

“the totality of the circumstances.”
marks omitted).

reasonableness

under

Id. (internal quotation

Sentences within or below a properly calculated

Guidelines range are presumed reasonable, and the presumption
“can

only

be

unreasonable
factors.”

rebutted

when

by

measured

showing
against

that
the

the

18

sentence

U.S.C.

is

§ 3553(a)

United States v. Louthian, 756 F.3d 295, 306 (4th

Cir.), cert. denied, 135 S. Ct. 421 (2014).
A

district

court’s

legal

conclusions

at

sentencing

reviewed de novo and factual findings for clear error.

are

United

States v. Gomez-Jimenez, 750 F.3d 370, 380 (4th Cir.), cert.
denied, 135 S. Ct. 305 (2014), and cert. denied, 135 S. Ct. 384
(2014).

In resolving factual disputes, a “sentencing court may

give weight to any relevant information before it, including
uncorroborated

hearsay,

provided
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that

the

information

has

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sufficient indicia of reliability to support its accuracy.”
“[W]e

afford

considerable

determinations

regarding

deference

the

to

a

reliability

of

district

Id.

court’s

information

in

a

PSR,” and will not disturb such determinations unless we have
“the

definite

committed.”

and

firm

conviction

that

a

mistake

has

been

United States v. McDowell, 745 F.3d 115, 120 (4th

Cir. 2014) (internal quotation marks omitted), cert. denied, 135
S. Ct. 942 (2015).
The

Joneses

calculating

the

contend

that

Guidelines

the

ranges

district
because

court
the

base

erred

in

offense

levels determined by the presentence reports (“PSRs”) were based
on double- and triple-counted drug quantities, and that each was
responsible for only a fraction of that amount.

The Government

responds that the district court properly relied on the drug
quantity determinations in the PSRs, and that the Joneses are
responsible for all reasonably foreseeable acts in furtherance
of the conspiracy.
Under the Guidelines, a defendant convicted of conspiring
to

distribute

controlled

substances

“is

accountable

for

all

quantities of contraband with which he was directly involved
and, in the case of a jointly undertaken criminal activity, all
reasonably foreseeable quantities of contraband that were within
the scope of the criminal activity that he jointly undertook.”
U.S. Sentencing Guidelines Manual § 1B1.3 cmt. n.2 (2013).
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must

prove

the

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drug

quantity

attributable

defendant by a preponderance of the evidence.
Carter, 300 F.3d 415, 425 (4th Cir. 2002).
Joneses

fail

to

affirmatively

unreliable information.

show

that

to

the

United States v.

We conclude that the
the

court

relied

on

Evidence in the record satisfied the

minimum threshold to warrant a base offense level of 34 under
USSG § 2D1.1(c)(3) (2013).
The

Joneses

also

assert

various

errors

by

the

district

court in applying sentencing enhancements for possession of a
firearm

pursuant

to

pursuant

to

§ 3B1.1(a)

USSG

USSG

§ 2D1.1(b)(1),
(2013),

pursuant to USSG § 2D1.1(b)(14)(E).

and

role

adjustments

criminal

livelihood

Dominique also challenges

the calculation of his criminal history.

Our review of the

record reveals no clear error by the district court in these
determinations.
Finally,

Accordingly, we discern no procedural error.

the

Joneses

assert

that

their

below-Guidelines

sentences were excessive because they were based on relevant
conduct found by the district court rather than the jury.

The

Supreme Court made clear in Alleyne, however, that its holding
“does not mean that any fact that influences judicial discretion
must be found by a jury.
sentencing

discretion,

We have long recognized that broad

informed

by

not violate the Sixth Amendment.”

judicial

factfinding,

does

133 S. Ct. at 2163; see

United States v. Smith, 751 F.3d 107, 117 (3d Cir.) (“Alleyne
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curtail

a

sentencing

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court’s

ability

to

find

facts

relevant in selecting a sentence within the prescribed statutory
range.”), cert. denied, 135 S. Ct. 383 (2014), and cert. denied,
135 S. Ct. 497 (2014).
Here, drug quantities found by the court did not alter the
statutory range established by the jury’s verdicts.

Instead,

the judge-found facts determined the Guidelines range from which
to sentence the Joneses within the statutory range.

Moreover,

the court was sensitive to the Joneses’ personal and criminal
backgrounds, their involvement in the conspiracy, their ages,
and the seriousness of the offense.

Importantly, the court did

not ignore their arguments for downward variances, but rather
considered

the

totality

Guidelines sentences.

of

circumstances

in

imposing

below-

The presumption that the sentences are

substantively reasonable has not been rebutted.
For
judgements

these
and

reasons,
orders

of

we

affirm

forfeiture.

the
We

district
dispense

court’s

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

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