US v. Sophia Jone

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 8:12-cr-00640-RWT-5. Copies to all parties and the district court. [999909155].. [15-4377]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4377

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SOPHIA JONES, a/k/a Nadine,
Defendant - Appellant.

Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, Senior District Judge.
(8:12-cr-00640-RWT-5)

Submitted:

July 29, 2016

Decided:

August 12, 2016

Before DUNCAN, AGEE, and HARRIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Elita C. Amato, Arlington, Virginia, for Appellant.
Rod J.
Rosenstein, United States Attorney, Deborah A. Johnston, Leah Jo
Bressack, Assistant United States Attorneys, OFFICE OF THE
UNITED STATES ATTORNEY, Greenbelt, Maryland; Leslie R. Caldwell,
Assistant Attorney General, Sung-Hee Suh, Deputy Assistant
Attorney General, John M. Pellettieri, UNITED STATES DEPARTMENT
OF JUSTICE, Washington, D.C., for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Sophia Jones was convicted after a jury trial of conspiracy
to distribute and possess with intent to distribute 1 kilogram
or more of heroin and 100 kilograms or more of marijuana, in
violation of 21 U.S.C. § 846 (2012), three counts of using a
communication facility to facilitate a drug trafficking offense,
in violation of 18 U.S.C. §§ 2, 843(b) (2012), two counts of
possession with intent to distribute heroin, in violation of
18 U.S.C.
possession
heroin,

in

§ 2

and

with

21

U.S.C.

intent

to

violation

of

§ 841

(2012),

distribute

18

U.S.C.

100

§ 2

and

and

one

grams
21

count

or

of

more

of

U.S.C.

§ 841.

The district court sentenced Jones to a total of 120 months’
imprisonment, and Jones appeals.

We affirm.

Jones argues first that her pre-trial motion for substitute
counsel was erroneously denied.

Because the magistrate judge,

rather than the district court, issued the ruling denying the
motion for substitute counsel, Rule 59(a) of the Federal Rules
of Criminal Procedure governs.

Rule 59(a) requires that a party

object to a magistrate judge’s determination on “any matter that
does not dispose of a charge or defense” within 14 days after
being served with a copy of the written order or after the oral
order

is

stated

on

the

record.

Fed.

R.

Crim.

P.

59(a).

“Failure to object in accordance with this rule waives a party’s
right to review.”

Id.
2

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The record does not indicate that Jones ever objected to
the

magistrate

judge’s

ruling

before

the

district

court.

Accordingly, Jones has waived appellate review of this issue.
Id.; United States v. Schronce, 727 F.2d 91, 93–94 (4th Cir.
1984) (“We do not believe . . . that the [Federal Magistrates]
Act can be interpreted to permit a party . . . to ignore his
right

to

imperiling

file
his

objections
right

court of appeals.”).

to

with

raise

the

the

district

objections

court
in

the

without
circuit

We also reject as without merit Jones’

argument that the waiver resulting from her failure to object to
the magistrate judge’s ruling should be excused in the interest
of justice.

See Wells v. Shriners Hosp., 109 F.3d 198, 199-200

(4th Cir. 1997).
Next, Jones challenges the district court’s denial of her
Fed. R. Crim. P. 29 motion for a judgment of acquittal on the
basis of insufficient evidence, arguing that the evidence is
insufficient to support her conviction on the conspiracy count.
We review the district court’s ruling de novo.

United States v.

Green, 599 F.3d 360, 367 (4th Cir. 2010).
We

review

the

sufficiency

of

the

evidence

to

support

a

conviction “by determining whether there is substantial evidence
in the record, when viewed in the light most favorable to the
government, to support the conviction.”
marks

omitted).

“Substantial

Id. (internal quotation

evidence
3

is

evidence

that

a

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finder

of

fact

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could

accept

as

adequate

and

sufficient to support a conclusion of a defendant’s guilt beyond
a reasonable doubt.”
A court

reviewing

Id. (internal quotation marks omitted).

for

such

evidence

may

not

assess

the

credibility of witnesses and must assume that the jury resolved
contradictions in testimony in the Government’s favor.
On

appeal,

Jones

does

not

contest

that

the

Id.
Government

sufficiently proved the existence of a conspiracy to distribute
and

possess

with

intent

to

distribute

heroin,

that

the

conspiracy “as a whole” dealt with more than one kilogram of
heroin, and that she was a member of the conspiracy.

Rather,

she argues that the evidence was insufficient to establish that
one kilogram or more of heroin and any amount of marijuana was
attributable to her.
The drug quantity attributable to Jones was the amount she
agreed to distribute or possess with intent to distribute as
well as the amount agreed to be distributed or possessed with
the intent to distribute by co-conspirators in furtherance of
the

conspiracy

that

foreseeable to her.

were

known

to

Jones

or

reasonably

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

763-72 (4th Cir. 2010); United States v. Brooks, 524 F.3d 549,
557-59

(4th

established

Cir.
her

2008).

personal

Jones

concedes

involvement

in

that

the

the

evidence

distribution

of

“approximately 167 grams of heroin,” and, after review of the
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record, we conclude that there was substantial evidence that
1 kilogram or more of heroin was reasonably foreseeable to her.
See United States v. Wang, 707 F.3d 911, 916 (7th Cir. 2013);
United States v. Banks, 10 F.3d 1044, 1054 (4th Cir. 1993).

In

view of this conclusion, we need not address Jones’ contention
that she is entitled to a reversal of her conviction or vacatur
of her sentence based on insufficient evidence that any amount
of marijuana was attributable to her.

See United States v.

Udeozor, 515 F.3d 260, 271 (4th Cir. 2008).
Finally, Jones challenges the district court’s denial of
her motion for an extension of time to file a Fed. R. Crim. P.
33 motion for a new trial based on ineffective assistance of
counsel.

The

district

court

premised

its

denial

on

the

determination that Jones failed to establish excusable neglect
under

Fed.

R.

Crim.

P.

45(b)(1)(B). *

determination for abuse of discretion.

We

review

this

See United States v.

Cates, 716 F.3d 445, 448 (7th Cir. 2013) (review of excusable

*

Under Fed. R. Crim. P. 45(b)(1)(B), a district court may
extend the deadline for the filing of a new trial motion after
the time expires if the movant failed to act because of
excusable neglect. The advisory committee notes to the 2005 and
2009 amendments state that this excusable neglect rule applies
to the time limit for motions filed under Fed. R. Crim. P. 33.
Under Fed. R. Crim. P. 33(b)(2), Jones had 14 days after the
jury’s January 24, 2014 verdict to file her new trial motion.
Jones moved for an extension of time to do so on February 25,
2015.

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neglect determination under Fed. R. Crim. P. 45(b)(1)(B) is for
abuse of discretion); see also United States v. Breit, 754 F.2d
526,

528-29

standard

to

(4th
asses

Cir.

1985)

claim

(applying

that

criminal

abuse

of

discretion

defendant’s

delay

in

filing notice of appeal was excusable neglect).
In

Pioneer

Inv.

Servs.

Co.

v.

Brunswick

Assocs.

Ltd.

P’ship, 507 U.S. 380, 395 (1993), the Supreme Court set forth in
a

bankruptcy

case

factors

to

be

considered

when

determining

whether a late filing is due to excusable neglect: “the danger
of prejudice [to the opposing party], the length of the delay
and its potential impact on judicial proceedings, the reason for
the

delay,

including

whether

it

was

within

the

reasonable

control of the movant, and whether the movant acted in good
faith.”
(1996)

See Stutson v. United States, 516 U.S. 193, 196–97
(per

curiam)

(applying

Pioneer

in

a

criminal

case).

Under Pioneer, the determination of whether neglect is excusable
“is at bottom an equitable one, taking account of all relevant
circumstances

surrounding

507 U.S. at 395.

the

party’s

omission.”

Pioneer,

“The Pioneer factors[, however,] do not carry

equal weight; the excuse given for the late filing must have the
greatest import.”

United States v. Munoz, 605 F.3d 359, 372

(6th Cir. 2010) (internal quotation marks omitted); see also
Thompson v. E.I. DuPont de Nemours & Co., Inc., 76 F.3d 530, 534
(4th Cir.

1996)

(holding

in

a
6

civil

case

that

“[t]he

most

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important of the factors identified in Pioneer for determining
whether

‘neglect’

is

‘excusable’

is

the

reason

for

the

[delay]”).
As to the length of the delay, the reason for it, and the
question of whether the delay was within Jones’ control, the
district

court

determined

that

these

granting the motion for extension.

factors

weighed

against

The motion was filed 13

months after the jury’s verdict and approximately 8 months after
the post-verdict appointment of new counsel.
rejected

Jones’

excuses

for

the

delay

The district court

(that

—

prior

to

the

appointment of new counsel — she did not know about the 14-day
time limit for filing a new trial motion under Fed. R. Crim. P.
33(b)(2)

and

counsel

needed

discovery

in

that

—

time

the

after
to

case)

the

appointment

review
and

the

found

trial

that

no

of

new

counsel

transcripts
evidence

had

—

and
been

presented that the delay was outside of Jones’ control.
Jones’ arguments on appeal, we conclude, do not establish
error

in

these

determinations.

The

delay

in

this

case

was

unambiguous, and Jones has not explained why new counsel needed
8 months to review trial transcripts and discovery or pointed to
anything in the record to establish that any portion or all of
the 13-month delay was outside of her control.

The court’s

determinations that these factors weighed against granting an
extension of time to file a new trial motion do not amount to an
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abuse of discretion.

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See Cates, 716 F.3d at 448-49; United

States v. Foster, 623 F.3d 605, 608 (8th Cir. 2010).
Jones has not challenged as reversible error the district
court’s failure to address whether she acted in good faith.
district

court

also

properly

considered

the

The

potential

unavailability of witnesses and the potential fading of memories
in weighing the length of the delay, its potential impact on
judicial

proceedings,

Government,

United

2010),

(8th Cir.

see

and

and

the

States
its

light

of

danger
v.

Boesen,

conclusion
these

of

prejudice
599

that

factors

F.3d

Jones’

was

not

to

the

874,

879

delay

was

unreasonable

in

an

abuse

of

discretion.

Additionally, given that the critical factor in the

inquiry — the reason for Jones’ delay — weighs against her, the
district

court’s

brief

citation

to

the

separateness

of

her

appeal as an example of a matter having a potential impact on
judicial proceedings does not establish an abuse of discretion
in the conclusion that Jones failed to establish her delay was
excusable.
Accordingly,
judgment.
legal
before

we

affirm

the

district

court’s

criminal

We dispense with oral argument because the facts and

contentions
this

court

are

adequately

and

argument

presented

would

not

in
aid

the
the

materials
decisional

process.
AFFIRMED
8