US v. Corvain Cooper

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:11-cr-00337-RJC-DSC-12 Copies to all parties and the district court/agency. [999671227].. [14-4586]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4586

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
CORVAIN T. COOPER, a/k/a CV,
Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.
Robert J. Conrad,
Jr., District Judge. (3:11-cr-00337-RJC-DSC-12)

Submitted:

August 31, 2015

Before KING and
Circuit Judge.

WYNN,

Circuit

Decided:

Judges,

and

October 2, 2015

HAMILTON,

Senior

Affirmed in part and dismissed in part by unpublished per curiam
opinion.

Patrick Michael Megaro, Orlando, Florida, for Appellant. Anne M.
Tompkins, United States Attorney, Anthony J. Enright, Assistant
United States Attorney, Charlotte, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
A jury convicted Corvain Cooper of conspiring to distribute
and possess with intent to distribute 1000 kilograms or more of
marijuana, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A),
846

(2012);

money

laundering,

in

violation

of

18

U.S.C.

§ 1956(a)(1)(A)(i), (a)(1)(B)(i), (h) (2012); and structuring,
and aiding and abetting in structuring, financial transactions
to

evade

reporting

requirements,

in

violation

of

31

U.S.C.

§ 5324(a)(3), (d)(1), (d)(2) (2012); 31 C.F.R. §§ 103.11, 103.22
(2015); 18 U.S.C. § 2 (2012).

The district court sentenced

Cooper to a mandatory term of life imprisonment.
that

(1)

marijuana

evidence
and

of

of

his

his

past

past

conviction

possession

for
of

a

Cooper argues
possession

of

firearm

was

inadmissible character evidence, (2) his case should have been
severed from those of his codefendants, (3) the evidence was
insufficient

to

connect

him

to

1000

or

more

kilograms

of

marijuana, (4) he suffered ineffective assistance of counsel,
and (5) his sentence violates the Eighth Amendment.

We affirm

in part and dismiss in part.
We first review Cooper’s challenges to the district court’s
admission of evidence for abuse of discretion.
Queen, 132 F.3d 991, 995 (4th Cir. 1997).

United States v.

Cooper contends that

the district court’s evidentiary rulings contravened both Rule
404(b) and Rule 403 of the Federal Rules of Evidence.
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Rule 404(b)(1) prohibits introduction of “[e]vidence of a
crime, wrong, or other act . . . to prove a person’s character
in order to show that on a particular occasion the person acted
in accordance with the character.”

Evidence “concern[ing] acts

intrinsic to the alleged crime,” however, does not fall within
Rule 404(b)’s ambit.

United States v. Otuya, 720 F.3d 183, 188

(4th Cir. 2013) (internal quotation marks and brackets omitted).
“[E]vidence

of

things,

involves

it

other

bad
the

acts
same

is

intrinsic

series

of

if,

among

transactions

other

as

the

charged offense, which is to say that both acts are part of a
single criminal episode.”
citation

omitted).

Id. (internal quotation marks and

Moreover,

evidence

subject

to

exclusion

under Rule 404(b)(1) “may be admissible for another purpose,
such as proving motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of accident.”
Fed. R. Evid. 404(b)(2).

Generally, we will not find that a

district court abused its discretion in admitting evidence over
a Rule 404(b) objection unless that decision was “arbitrary and
irrational.”

United States v. Williams, 740 F.3d 308, 314 (4th

Cir. 2014).
We

find

no

abuse

of

discretion

in

the

district

court’s

decision to admit the testimony of Beverly Hills, California
police officer David Rudy that he recovered a brick of marijuana
and other evidence of drug distribution from Cooper during a
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traffic stop in January 2009.

At the conclusion of Officer

Rudy’s testimony, the court instructed the jury to limit its
consideration of that testimony to the issues of intent, motive,
plan,

preparation,

absence

of

mistake,

or

lack

of

accident.

Evidence that Cooper was selling marijuana in California at the
height of the drug trafficking conspiracy alleged in this case
is probative of his intent to participate in that conspiracy,
even if his low-level distribution in California was not part of
the conspiracy.

See United States v. Ghant, 339 F.3d 660, 664

(8th Cir. 2003). *
We also find no abuse of discretion in the district court’s
admission

of

evidence

that

firearm to protect himself.

Cooper

obtained

and

possessed

a

Because firearms are tools of the

drug trade, evidence that Cooper possessed a firearm is relevant
intrinsic evidence of the ongoing conspiracy.

See United States

v. Ricks, 882 F.2d 885, 892 (4th Cir. 1984) (“[E]vidence of
firearms is relevant in narcotics conspiracy cases.”); see also
Ybarra v. Illinois, 444 U.S. 85, 107 (1979) (recognizing that
*

The government asks us to find that evidence that Cooper
was dealing drugs in California was “inextricably intertwined”
with the conspiracy and therefore not subject to the constraints
of Rule 404(b).
See Otuya, 720 F.3d at 188.
Because we
conclude that the district court was within its discretion to
admit Officer Rudy’s testimony only as evidence of intent,
motive, preparation, plan, absence of mistake, or lack of
accident, we do not address whether the court might have
admitted it for more general purposes.

4

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firearms

are

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as

much

“tools

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of

the

trade”

in

the

narcotics

business as are other forms of paraphernalia).
We also reject Cooper’s argument that the district court
should have excluded Officer Rudy’s testimony and the evidence
of Cooper’s firearm possession pursuant to Rule 403.

Rule 403

permits a district court to “exclude relevant evidence if its
probative value is substantially outweighed by a danger of . . .
unfair prejudice.”

Because “balancing . . . the Rule 403 scale

. . . is a discretionary task for the district court,” we will
not overturn a district court’s decision to admit evidence over
a

Rule

403

objection

“‘except

under

the

most

extraordinary

circumstances, where that discretion has plainly been abused,’”
and the trial court has acted “‘arbitrarily or irrationally.’”
United States v. Williams, 445 F.3d 724, 732 (4th Cir. 2006)
(quoting United States v. Simpson, 910 F.2d 154, 157 (4th Cir.
1990)).
acted

Here, Cooper has simply not shown that the trial court
arbitrarily

or

irrationally

in

concluding

that

the

unfairly prejudicial effect of Officer Rudy’s testimony and the
evidence of Cooper’s firearm possession did not “substantially
outweigh” the probative value of that evidence.
We

likewise

consider

the

district

court’s

denial

Cooper’s motion for severance for abuse of discretion.
States v. Min, 704 F.3d 314, 319 (4th Cir. 2013).

United

A district

court has “broad discretion” to deny a motion for severance.
5

of

To

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establish an abuse of that discretion, a defendant must show
that he suffered prejudice as a result of the denial.

United

States v. Lighty, 616 F.3d 321, 348 (4th Cir. 2010).
The

Federal

Rules

of

Criminal

Procedure

permit

multiple

defendants to be “charged in the same indictment if they are
alleged to have ‘participated in the same act or transaction, or
in

the

same

series

of

offense or offenses.’”

acts

or

transactions,

constituting

an

Id. (quoting Fed. R. Crim. P. 8(b)).

Moreover, “[t]here is a preference in the federal system for
joint trials of defendants who are indicted together because
such

trials

promote

efficiency

and

serve

the

interests

of

justice by avoiding the scandal and inequality of inconsistent
verdicts.”
12-4659,

United

12-4825,

States
2015

WL

v.

Graham,

4637931,

__

at

F.3d

*28

__,

(4th

__,

Cir.

Nos.
2015)

(internal quotation marks and brackets omitted).
While Rule 14 permits severance, a district court should
not order it unless “there is a serious risk that a joint trial
would

compromise

a

specific

trial

right

of

one

of

the

defendants, or prevent the jury from making a reliable judgment
about guilt or innocence.”

Id.

The burden rests with the

defendant to show “that actual prejudice would result from a
joint trial, and not merely that a separate trial would offer a
better chance of acquittal.”

Id. (internal quotation marks and

ellipses omitted).
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Cooper makes no such showing.
specific

right

demonstrates

that

that

the

the

joint

joint

ignorance

and

have

infringed

prevented

upon

the

jury

nor
from

While one of his codefendants

sought
been

trial

trial

reliably determining his guilt.
pleaded

Cooper neither identifies a

to

shift

admissible

blame

even

to

that

his

if

him,
trial

were

testimony

would

severed.

Cooper thus suffered no prejudice, and consequently,

we find no abuse of discretion in the denial of Cooper’s motion
to sever.
We

next

Cooper’s

review

Rule

29

de

novo

motion

for

the

district

judgment

of

court’s

denial

acquittal.

States v. Smith, 451 F.3d 209, 216 (4th Cir. 2006).
affirm

if,

when

the

evidence

is

viewed

in

the

of

United
We will

light

most

favorable to the government, “the conviction is supported by
substantial evidence.”
762-63

(4th

Cir.

United States v. Hickman, 626 F.3d 756,

2010)

(internal

quotation

marks

omitted).

“‘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.’”
United

States

v.

Green,

599

F.3d

360,

367

(4th

Cir.

2015)

(quoting United States v. Burgos, 94 F.3d 849, 862 (4th Cir.
1996)

(en

banc)).

A

defendant

sufficiency “faces a heavy burden.”
507 F.3d 233, 245 (4th Cir. 2007).
7

challenging

evidentiary

United States v. Foster,
Reversal of a conviction on

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these

grounds

failure

is

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is

limited

clear.”

Id.

to
at

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“cases

where

the

244-45

(internal

for

drug

prosecution’s

quotation

marks

omitted).
To
U.S.C.

obtain
§

846,

a

conviction

the

government

a
must

conspiracy

show

that

under

a

21

defendant

(1) agreed with at least one more person to engage in conduct
that

violated

21

U.S.C.

§

841;

(2)

had

knowledge

of

the

conspiracy; and (3) knowingly and voluntarily participated in
the conspiracy.
Cir. 2014).

United States v. Howard, 773 F.3d 519, 525 (4th

Further, “in order for the statutory maximums and

mandatory minimums of § 841(b) to apply,” the government must
demonstrate

“that

foreseeable

to

the

the

threshold

individual

drug

amount

defendant.”

Brooks, 524 F.3d 549, 558 (4th Cir. 2008).

was

United

reasonably
States

v.

In that vein, this

Court has cautioned that the trier of fact “may not simply guess
at the magnitude or frequency of unknown criminal activity” if
“no evidence exists to guide the trier of fact in determining
the outer scope of a conspiracy.”
Here,

the

Government

Hickman, 626 F.3d at 768-69.

presented

sufficient

evidence

specifically showing that Cooper was responsible for more than
1000 kilograms of marijuana.

The Government presented testimony

from three of Cooper’s coconspirators, each of whom claimed to
distribute well over 10,000 kilograms of marijuana.

While only

153 kilograms of marijuana were seized, the jury is not limited
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to considering only that marijuana which is seized.

See United

States v. Durham, 211 F.3d 437, 444 (7th Cir. 2000) (holding
that

court

may

take

witnesses’

estimates

of

amount

of

drugs

purchased and multiply that by minimum quantity sold on each
occasion), cited in Hickman, 626 F.3d at 769.
Next, while Cooper charges his attorney with ineffective
assistance,

unless

an

attorney’s

ineffectiveness

conclusively

appears on the face of the record, such claims are not generally
addressed on direct appeal.
424,

435

(4th

Cir.

United States v. Benton, 523 F.3d

2008).

Because

his

attorney’s

ineffectiveness does not appear on the face of the record, his
claims

should

be

raised

in

a

motion

brought

pursuant

to

28

U.S.C. § 2255 (2012), to permit sufficient development of the
record.

United States v. Baptiste, 596 F.3d 214, 216 n.1 (4th

Cir. 2010).

We thus dismiss his appeal with respect to the

ineffective assistance claims.
Finally,

we

review

de

novo

Cooper’s

sentence on Eighth Amendment grounds.
771

F.3d

162,

prohibits

cruel

167

(4th

and

Cir.

unusual

challenge

to

his

United States v. Dowell,

2014).

The

punishments,

Eighth

Amendment

encompassing

both

barbaric punishments and those that are disproportionate to the
crime committed.
determining
offense,

and

Graham v. Florida, 560 U.S. 48, 59 (2010).

whether

a

sentence

thus

cruel

and

is

disproportionate

unusual,
9

we

consider

to

In
the

objective

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criteria, including the gravity of the offense and harshness of
the penalty, the sentences imposed on other criminals in the
same

jurisdiction,

and

the

sentences

offense in other jurisdictions.
the

challenges

charging

imposed

for

the

same

Dowell, 771 F.3d at 167.

that

a

particular

sentence

Of
is

disproportionate to the crime committed, there are two types: an
as-applied

challenge

disproportionate
categorical

given

challenge

that
the

the

length

of

circumstances

asserting

that

of

the

a

sentence

the

case,

entire

and

class

is
a
of

sentences is disproportionate based on the nature of the offense
or the characteristics of the offender.
Where,

as

here,

a

party

has

Id.
asserted

an

as-applied

challenge to a particular sentence, we have outlined a specific
method of analysis:
[T]he narrow proportionality principle of the Eighth
Amendment does not require strict proportionality
between crime and sentence, but forbids only extreme
sentences that are grossly disproportionate to the
crime.
Before an appellate court concludes that a
sentence is grossly disproportionate based on an
as-applied challenge, the court first must determine
that a threshold comparison of the gravity of the
offense and the severity of the sentence leads to an
inference of gross disproportionality.
United

States

v.

Cobler,

748

F.3d

570,

575

(4th

Cir.

2014)

(internal quotation marks and citations omitted).
As

Cooper

acknowledges,

we

have

previously

held

that

a

mandatory sentence of life without parole for drug distribution

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is not grossly disproportionate.
F.3d 63, 68 (4th Cir. 1995).

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United States v. Kratsas, 45

In Kratsas, we emphasized that the

defendant’s conduct was “immensely grave,” considering that the
defendant was “part of a ring of dealers,” directly responsible
“a large amount of cocaine, specifically 18 kilograms,” and a
repeat

drug

offender.

Id.

Cooper

makes

no

effort

to

distinguish Kratsas; rather, he urges us to reconsider Kratsas
in light of policy changes concerning marijuana and sentencing
since that decision.
issued

by

another

We cannot overrule a published decision

panel

of

this

Court.

McMellon

States, 387 F.3d 329, 332 (4th Cir. 2004) (en banc).

v.

United

Therefore,

we conclude that Kratsas forecloses Cooper’s Eighth Amendment
claim.
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 AND
DISMISSED IN PART

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