US v. John White
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 8:13-cr-00356-GJH-1 Copies to all parties and the district court/agency. [999752817].. [14-4944]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4944
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOHN DAVID WHITE,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt.
George J. Hazel, District Judge.
(8:13-cr-00356-GJH-1)
Submitted:
January 29, 2016
Before MOTZ and
Circuit Judge.
THACKER,
Decided:
Circuit
Judges,
February 10, 2016
and
DAVIS,
Senior
Affirmed by unpublished per curiam opinion.
Edward Griffin, ADELPHI LLP, Baltimore, Maryland, for Appellant.
Rod J. Rosenstein, United States Attorney, Nicolas A. Mitchell,
Assistant United States Attorney, Greenbelt, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
A jury convicted John David White of conspiring to possess
and attempt to possess with intent to distribute 500 grams but
less
than
5
kilograms
of
cocaine
and
100
grams
or
more
of
heroin, in violation of 21 U.S.C. § 846 (2012); possessing and
attempting to possess with intent to distribute 500 grams or
more of cocaine and 100 grams or more of heroin, in violation of
21 U.S.C. § 841(a) (2012); maintaining a place for the purpose
of distributing controlled substances, in violation of 21 U.S.C.
§ 856(a)(1) (2012); and possessing a firearm in furtherance of a
drug
trafficking
(2012).
crime,
in
violation
of
18
U.S.C.
§ 924(c)
The district court sentenced White to a total of 248
months’ imprisonment.
On appeal, White asserts that the court
improperly
pretrial
denied
his
suppression
motions;
that
the
court improperly instructed the jury and constructively amended
the superseding indictment; that insufficient evidence supported
the jury verdict; and that the court improperly calculated his
sentence based on a drug quantity not found by the jury.
We
affirm.
I.
White contends that the district court improperly denied
his pretrial motions to suppress evidence seized during searches
of his car and the storage unit and to exclude his postarrest
statements.
In evaluating the denial of a suppression motion,
2
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“we review the district court’s factual findings for clear error
and its legal conclusions de novo.”
United States v. Green, 740
F.3d 275, 277 (4th Cir.), cert. denied, 135 S. Ct. 207 (2014);
see United States v. Span, 789 F.3d 320, 325 (4th Cir. 2015)
(defining clear error).
“We construe the evidence in the light
most
government,
favorable
below.”
to
the
as
Green, 740 F.3d at 277.
the
prevailing
party
“We . . . defer[] to a
district court’s credibility determinations, for it is the role
of
the
district
credibility
court
during
a
to
observe
pre-trial
witnesses
motion
to
and
weigh
suppress.”
their
United
States v. Patiutka, 804 F.3d 684, 689 (4th Cir. 2015) (internal
quotation marks omitted).
Contrary to White’s assertion on appeal, the record reveals
that police did not execute the search warrant until after it
was obtained.
that
he
was
Additionally, noting that White does not dispute
read
his
Miranda 1
rights,
we
conclude
understood and affirmatively waived those rights.
court’s
credibility
suppression
hearing
assessment
is
of
entitled
officer
to
he
The district
testimony
deference,
that
and
at
the
White’s
arguments, which repeat the contentions he raised during the
hearing, are not sufficient to overcome that deference.
1
Miranda v. Arizona, 384 U.S. 436 (1966).
3
See id.
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Thus, we discern no error in the district court’s denial of
White’s suppression motions. 2
II.
Next,
charging
multiple
White
the
asserts
jury
because
disjunctives
that
the
the
district
instructions
despite
his
being
court
in
provided
were
erred
in
charged
conjunctive, thereby subverting a unanimous verdict.
in
the
White also
asserts that the court broadened the bases for his convictions
by instructing the jury on lesser-included drug quantities.
We review de novo a claim of constructive amendment to an
indictment.
(4th
Cir.
United States v. Allmendinger, 706 F.3d 330, 339
2013).
A
constructive
amendment
occurs
when
“the
district court, through its instructions to the jury, . . .
broadens the bases for conviction beyond those charged in the
indictment.”
Id. (internal quotation marks omitted).
“The key
inquiry is whether the defendant has been tried on charges other
than those made in the indictment against him.”
Id. (internal
quotation marks omitted).
We reject White’s claims.
multiple-object
“Courts have uniformly upheld
conspiracies,
and
2
they
have
consistently
Additionally, to the extent that White challenges the
denial of his motion to set aside the verdict based on the
suppression rulings, we conclude that the district court did not
abuse its discretion. See United States v. Rooks, 596 F.3d 204,
209-10 (4th Cir. 2010) (stating standard).
4
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concluded
evidence
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that
shows
a
guilty
that
the
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verdict
must
conspiracy
be
sustained
furthered
any
one
if
the
of
the
objects alleged.”
United States v. Bolden, 325 F.3d 471, 492
(4th Cir. 2003).
Additionally, “[i]t is well established that
when
the
Government
charges
in
the
conjunctive,
and
the
statute[s, as here, are] worded in the disjunctive, the district
court can instruct the jury in the disjunctive.”
v. Perry, 560 F.3d 246, 256 (4th Cir. 2009).
United States
Moreover, in drug-
trafficking offenses, drug quantity is not an element that must
be established for conviction.
F.3d
519,
525,
526
(4th
See United States v. Howard, 773
Cir.
2014)
conspiracy and possession offenses).
particular
drug
quantity,
“[a]
(stating
elements
of
If an indictment charges a
defendant
.
.
.
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).
“Because
the
lesser
included offense is included in the charged offense, there is no
variance.”
Id.
III.
White also asserts that insufficient evidence supports his
conspiracy
and
possession
convictions.
sufficiency of the evidence de novo.
review
the
United States v. Palomino-
Coronado, 805 F.3d 127, 130 (4th Cir. 2015).
5
We
The jury verdict
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must be sustained “if it is supported by substantial evidence,
viewed in the light most favorable to the government.”
(defining substantial evidence).
Id.
A defendant challenging the
sufficiency of the evidence to support a conviction bears “a
heavy burden,” and “reversal for insufficiency must be confined
to
cases
where
the
prosecution’s
failure
is
clear.”
Id.
(internal quotation marks omitted).
We conclude that White fails to overcome his burden.
record
reveals
evidence
at
that
trial
the
Government
establishing
that
attempted to possess cocaine and heroin.
presented
White
The
substantial
possessed
and
See Howard, 773 F.3d
at 526; United State v. Herder, 594 F.3d 352, 358 (4th Cir.
2010) (defining constructive possession).
Moreover, substantial
circumstantial evidence supports White’s conspiracy conviction.
See Howard, 773 F.3d at 525; United States v. Burgos, 94 F.3d
849,
857
(4th
Cir.
1996)
(en
banc)
(discussing
nature
of
conspiracy and proof required).
IV.
Finally, White asserts that the district court erred in
sentencing him based on a speculative drug quantity.
A district
court’s legal conclusions at sentencing are reviewed de novo and
its
factual
findings
are
reviewed
for
clear
error.
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
6
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(2014).
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The court “may consider uncharged and acquitted conduct
in determining a sentence, as long as that conduct is proven by
a preponderance of the evidence.”
United States v. Grubbs, 585
F.3d 793, 799 (4th Cir. 2009); see Perry, 560 F.3d at 258.
Our
review of the record reveals no clear error in the court’s drugquantity determination for purposes of sentencing.
We affirm the district court’s judgment.
oral
argument
adequately
because
presented
in
the
the
facts
and
materials
legal
before
We dispense with
contentions
this
court
are
and
argument would not aid the decisional process.
AFFIRMED
7
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