US v. Antowan Thorne
Filing
UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to file supplemental brief [999568978-2]. Originating case number: 1:14-cr-00165-LMB-1. Copies to all parties and the district court. [999611761]. [14-4878]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4878
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTOWAN THORNE, a/k/a Smooth,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.
Leonie M. Brinkema,
District Judge. (1:14-cr-00165-LMB-1)
Submitted:
June 17, 2015
Decided:
June 30, 2015
Before NIEMEYER, KING, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Edwin F. Brooks, EDWIN F. BROOKS, LLC, Richmond, Virginia, for
Appellant.
Dana J. Boente, United States Attorney, Michael P.
Ben’Ary, Assistant United States Attorney, Marc J. Birnbaum,
Special Assistant United States Attorney, Alexandria, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Following a bench trial, Antowan Thorne was convicted of
the lesser-included charge of conspiracy to distribute 100 grams
or more of heroin, in violation of 21 U.S.C. §§ 841(a)(1), 846
(2012).
The
district
imprisonment,
which
court
was
sentenced
in
the
Thorne
middle
Guidelines range of 262-327 months.
of
to
300
his
months’
Sentencing
The calculation of this
range was driven by Thorne’s career offender designation.
U.S. Sentencing Guidelines Manual § 4B1.1 (2014).
See
This appeal
timely followed.
On appeal, Thorne raises four issues for our consideration.
He first challenges the sufficiency of the Government’s evidence
underlying
his
conviction
and
takes
issue
with
the
district
court’s decision to credit the cooperating witness’s testimony.
Thorne’s
next
three
Guidelines range.
issues
relate
to
the
computation
of
his
Specifically, Thorne asserts that one of his
career offender predicates was improperly counted and that the
district court erred in enhancing his base offense level for
possessing a firearm and obstructing justice.
For the reasons
that follow, we reject these arguments and affirm the judgment.
I.
Thorne
denying
his
first
Fed.
contends
that
R.
P.
conclusion of trial.
Crim.
the
29
district
motions
court
during
erred
and
at
in
the
We review de novo the denial of a Rule 29
2
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motion for a judgment of acquittal.
United States v. Strayhorn,
743 F.3d 917, 921 (4th Cir.), cert. denied, 134 S. Ct. 2689
(2014).
A defendant challenging the sufficiency of the evidence
faces “a heavy burden.”
United States v. McLean, 715 F.3d 129,
137 (4th Cir. 2013) (internal quotation marks omitted).
The
verdict must be sustained if “there is substantial evidence in
the
record,
when
government,
to
viewed
support
in
the
the
light
most
conviction.”
favorable
United
to
the
States
v.
Jaensch, 665 F.3d 83, 93 (4th Cir. 2011) (internal quotation
marks
omitted).
reasonable
“Substantial
finder
of
fact
evidence
could
is
accept
evidence
as
that
adequate
a
and
sufficient to support a conclusion of a defendant’s guilt beyond
a
reasonable
doubt.”
alteration omitted).
the
reviewing
evidence
and
presented[.]”
omitted).
court,
Id.
(internal
quotation
marks
and
Furthermore, it is the trier-of-fact, “not
[that]
resolves
weighs
any
the
conflicts
credibility
in
the
of
the
evidence
McLean, 715 F.3d at 137 (internal quotation marks
“Reversal for insufficient evidence is reserved for
the rare case where the prosecution’s failure is clear.”
United
States v. Ashley, 606 F.3d 135, 138 (4th Cir. 2010) (internal
quotation marks omitted).
To convict Thorne of conspiracy to distribute heroin, the
Government had to prove the following essential elements:
“(1)
an agreement between two or more persons to engage in conduct
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that violates a federal drug law; (2) the defendant’s knowledge
of the conspiracy; and (3) the defendant’s knowing and voluntary
participation in the conspiracy.”
United States v. Green, 599
F.3d 360, 367 (4th Cir. 2010).
With
these
Government’s
standards
evidence
Thorne’s conviction.
in
was
mind,
more
we
than
conclude
sufficient
that
to
the
support
The cooperating witness testified that,
during the time period alleged in the indictment, the witness
and Thorne worked together to sell Thorne’s heroin to a broader
array of customers.
Thorne was the witness’s primary source for
heroin, and the witness sold between 100 and 150 grams of heroin
obtained
from
Thorne.
Their
relationship
was
based
on
the
common goal of selling more drugs and thus making more money.
Thorne nonetheless contends that the Government failed to
demonstrate a conspiracy because there was no direct evidence of
an agreement between Thorne and any co-conspirator; none of the
purchasers further sold the heroin they obtained from Thorne;
and there was no testimony establishing profit-sharing.
contends
that
the
witness
was,
at
the
most,
simply
Thorne
another
customer of Thorne’s.
Thorne’s
arguments
fail
on
this
record.
Individuals
involved in drug trafficking ventures do not memorialize their
agreements
in
writing,
and
we
have
long
recognized
that,
“[g]iven the ‘clandestine and covert’ nature of conspiracies,
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the
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government
can
prove
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the
existence
circumstantial evidence alone.”
F.3d 519, 525 (4th Cir. 2014).
more
than
circumstantial
of
a
conspiracy
by
United States v. Howard, 773
Here, though, the Government had
evidence;
the
witness
testified,
directly, as to the purpose of joining forces with Thorne and to
obtaining heroin from Thorne for resale.
See United States v.
Edmonds, 679 F.3d 169, 174 (4th Cir.) (“[A]ny agreement made in
addition to or beyond the bare buy-sell transaction may be taken
to
infer
a
joint
enterprise
between
the
parties
beyond
the
simple distribution transaction and thereby support a finding of
conspiracy.”), vacated on other grounds, 133 S. Ct. 376 (2012).
Finally,
the
lack
of
evidence
of
profit-sharing
is
not
dispositive of whether a drug-trafficking conspiracy exists.
Thorne’s
attempts
to
likewise are unsuccessful.
undermine
the
witness’s
credibility
The district court, sitting as the
trier-of-fact, was in the best position to weigh the witness’s
credibility and demeanor, and acted well within its bounds in
choosing to credit the witness’s testimony.
See United States
v. Crawford, 734 F.3d 339, 343 (4th Cir. 2013) (compiling Fourth
Circuit precedent for the proposition that, “although the factfinder
can
consider
a
witness’s
status
as
a
drug
user
or
criminal history in assessing his or her credibility, this Court
has not found that these attributes render a witness per se
unreliable”), cert. denied, 134 S. Ct. 1528 (2014).
5
And, as the
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district court noted, the witness’s testimony was corroborated
by
testimony
from
two
other
witnesses
who
regularly
and
frequently purchased heroin from both Thorne and the witness.
We thus affirm Thorne’s conviction.
II.
Thorne’s primary sentencing argument is that the district
court committed reversible procedural error in its application
of the modified categorical approach in determining his career
offender status.
For the reasons that follow, we find any error
in this regard to be harmless and thus affirm Thorne’s career
offender designation.
We
review
outside,
or
any
criminal
significantly
sentence,
outside
the
“whether
inside,
Guidelines
range,”
just
for
procedural and substantive reasonableness, 1 “under a deferential
abuse-of-discretion standard.”
United States v. King, 673 F.3d
274, 283 (4th Cir. 2012); see Gall v. United States, 552 U.S.
38,
46,
51
(2007).
In
first
evaluating
procedural
reasonableness, this court considers whether the district court
properly calculated the defendant’s advisory Guidelines range,
gave
the
parties
an
opportunity
to
argue
for
an
appropriate
sentence, considered the 18 U.S.C. § 3553(a) (2012) factors,
1
Thorne does not challenge the substantive reasonableness
of his sentence.
6
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selected a sentence supported by the record, and sufficiently
explained that sentence.
See Gall, 552 U.S. at 51.
A defendant is a career offender if he was at least 18
years
old
at
the
time
of
the
instant
offense,
the
instant
offense is a drug felony or crime of violence, and the defendant
has at least two prior felony convictions for drug offenses or
crimes
of
violence.
USSG
§ 4B1.1(a).
A
prior
conviction
qualifies as a “crime of violence” if the offense is punishable
by more than one year of imprisonment and, as relevant to this
case, “has as an element the use, attempted use, or threatened
use of physical force against the person of another[.]”
§ 4B1.2(a)(1).
USSG
This court reviews de novo the district court’s
conclusion
that
a
prior
conviction
qualifies
as
a
crime
of
violence.
See United States v. Gomez, 690 F.3d 194, 197 (4th
Cir. 2012).
Thorne only contests the viability of his second career
offender predicate, to wit:
Thorne’s 2008 guilty plea, in the
Superior Court for the District of Columbia, to conspiracy to
obstruct justice, and resulting 36-month sentence.
Thorne pled
guilty to violating D.C. Code § 22-722(a)(2)(A), which provides,
in relevant part:
A person commits the offense of obstruction of justice
if that person:
(2) Knowingly uses intimidating or physical force,
threatens or corruptly persuades another person, or by
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threatening letter or communication, endeavors to
influence, intimidate, or impede a witness or officer
in any official proceeding, with intent to:
(A)
Influence,
delay,
or
prevent
the
truthful
testimony of the person in an official proceeding[.]
In
argued
his
objection
that
this
to
statute
the
of
use
of
this
conviction
was
predicate,
Thorne
divisible,
under
Descamps v. United States, 133 S. Ct. 2276 (2013), and thus that
the court needed to utilize the modified categorical approach to
determine
if
Thorne’s
conviction
qualified
as
a
crime
of
violence.
Considering only the factual proffer that accompanied
Thorne’s plea agreement in that matter, defense counsel argued
that it did not support a finding that Thorne was convicted of a
crime of violence because it established, at the most, a threat
of harm to an individual made vis-à-vis a third party.
The district court first rejected this argument based on
the factual proffer.
conclusion
by
recommendation,
revocation
which
the
But the court went on to buttress this
citing
in
proceeding
the
magistrate
Thorne’s
in
magistrate
unrelated
another
judge
federal
recommended
judge’s
report
supervised
and
release
district
court,
finding
that
in
this
conviction qualified as a crime of violence under the modified
categorical approach.
On
appeal,
Thorne
claims
the
district
court
committed
reversible procedural error in relying on the magistrate judge’s
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recommendation to support its analysis.
As we have explained,
the modified categorical approach:
[M]ay be used in cases where the state statute under
which the defendant was previously convicted sets out
one
or
more
elements
of
the
offense
in
the
alternative, but not where the statute is indivisible.
Moreover,
even
under
the
modified
categorical
approach, the later court is generally limited to
examining the statutory definition, charging document,
written plea agreement, transcript of plea colloquy,
and any explicit factual finding by the trial judge to
which the defendant assented.
The judge may not
consider police reports or complaint applications.
United States v. Flores-Granados, 783 F.3d 487, 491 (4th Cir.
2015) (internal quotation marks and citations omitted).
agree
that
magistrate
the
district
judge’s
report
court
in
the
erred
in
unrelated
We thus
considering
the
revocation
case
because this is not a Shepard 2-approved source.
However, this error is rendered harmless by the fact that
the district court announced a perfectly sound basis for the
same finding immediately prior to noting its consideration of
the
magistrate
accompanying
judge’s
the
plea
report:
that
agreement
established
2
the
factual
proffer
that
Thorne’s
Shepard v. United States, 544 U.S. 13 (2005).
As we
recently explained, in assessing a prior guilty plea, Shepardapproved
documents
include
“the
charging
document,
plea
agreement, plea transcript between the judge and the defendant
in which the factual basis for the plea was confirmed by the
defendant, or to some comparable judicial record of this
information.”
United States v. Span, __ F.3d __, 2015 WL
3541800, at *4 (4th Cir. June 8, 2015) (internal quotation marks
omitted).
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conviction was for a crime of violence.
Indeed, the agreed-upon
factual proffer clearly established that the threatened use of
physical
force
conviction
against
under
D.C.
another
Code
was
an
element
§ 22-722(a)(2)(A)
—
of
even
Thorne’s
if
that
threat was not directly communicated to the intended victim.
See USSG § 4B1.2(a)(1).
Significantly,
Thorne
does
not
challenge
the
general
propriety of the district court’s utilization of the modified
categorical
approach
or
reliance
on
this
Shepard-approved
source, and we discern no error in the court’s conclusion based
thereon.
We thus affirm the career offender designation despite
the procedural error.
See United States v. Savillon–Matute, 636
F.3d 119, 123–24 (4th Cir. 2011) (explaining the harmless error
analysis
employed
when
evaluating
claims
of
procedural
sentencing error).
Our disposition of this issue effectively moots Thorne’s
challenges to the two-level firearm enhancement and the twolevel obstruction of justice adjustment.
Because the offense
level established under the career offender Guideline was more
than the offense level calculated using the Guidelines for the
drug offense including any specific offense characteristic or
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adjustment, 3 neither the firearm enhancement nor the obstruction
adjustment
affected
Thorne’s
sentence.
Accordingly,
we
find
these arguments are moot.
For these reasons, we affirm the criminal judgment.
We
deny Thorne’s motion to file a pro se supplemental brief in this
counseled appeal.
facts
and
materials
legal
before
We dispense with oral argument because the
contentions
are
adequately
this
and
argument
court
presented
would
not
in
the
aid
the
decisional process.
AFFIRMED
3
Prior to application of the career offender Guideline,
Thorne had an adjusted offense level of 32 and his criminal
history category was IV.
As a career offender, Thorne’s total
adjusted offense level increased to 34, and he was placed in
criminal history category VI. See USSG § 4B1.1(b)(2).
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