US v. William Askew, III


UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:14-cr-00023-D-2 Copies to all parties and the district court/agency. [999990543].. [16-4048]

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Appeal: 16-4048 Doc: 53 Filed: 12/20/2016 Pg: 1 of 9 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 16-4048 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. WILLIAM ELDRIDGE ASKEW, III, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Dever, III, Chief District Judge. (5:14-cr-00023-D-2) Submitted: November 29, 2016 Decided: December 20, 2016 Before NIEMEYER, DUNCAN, and WYNN, Circuit Judges. Affirmed by unpublished per curiam opinion. Paul K. Sun, Jr., Kelly Margolis Dagger, ELLIS & WINTERS LLP, Raleigh, North Carolina, for Appellant. John Stuart Bruce, Acting United States Attorney, Jennifer P. May-Parker, Phillip A. Rubin, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. Appeal: 16-4048 Doc: 53 Filed: 12/20/2016 Pg: 2 of 9 PER CURIAM: A jury convicted William Eldridge Askew, III, of conspiring to possess heroin, with 21 possession intent U.S.C. with to § 846 intent § 841(a)(1) (2012). distribute (2012), to 100 and distribute grams aiding or more and heroin, of abetting 21 U.S.C. On appeal, Askew challenges the sufficiency of the evidence, two evidentiary rulings, and his designation as a career offender. Finding no reversible error, we affirm. I. “[W]e review de novo a district court’s denial of a motion for judgment of acquittal.” 485, 501-02 (2016). In (4th Cir. assessing United States v. Fuertes, 805 F.3d 2015), cert. evidentiary denied, 136 sufficiency, S. Ct. 1220 we determine whether substantial evidence supports the conviction when viewed in the light most favorable to the Government. Engle, 676 F.3d 405, 419 (4th Cir. 2012). United States v. “Substantial evidence is evidence that a reasonable finder of fact could accept as adequate and sufficient to support a conclusion of guilt beyond a reasonable doubt.” Id. “To prove [a 21 U.S.C. § 846] conspiracy, the government must demonstrate beyond a reasonable doubt (1) an agreement between two or more persons to engage in conduct that violates a federal drug law, (2) the defendant’s knowledge of the conspiracy, and (3) the defendant’s knowing and 2 Appeal: 16-4048 Doc: 53 Filed: 12/20/2016 Pg: 3 of 9 voluntary participation in the conspiracy.” United States v. Gomez-Jimenez, 750 F.3d 370, 378 (4th Cir. 2014). Askew contends that the Government failed to establish that Askew knowingly and voluntarily conspired to distribute heroin or that 100 grams or more of heroin were attributable to Askew, highlighting his codefendant’s trial testimony that Askew had no “say-so” in the drug deal and that the Government failed to introduce however, 100 that conviction. trial, grams of heroin sufficient Askew’s testified into evidence supports codefendant, that Askew evidence. who We Askew’s pled conspiracy guilty participated in conclude, prior the to heroin distribution by allowing heroin to be hidden in Askew’s hotel room and occasionally delivering the heroin to the codefendant. While the codefendant did testify that Askew had no “say-so” regarding the enforcement heroin. purchased heroin that his deal in role Detroit, in that Askew deal admitted was to to law package the Furthermore, while less than 100 grams of heroin was in Detroit, the codefendant testified agreement was to receive 100 grams of heroin. that the See United States v. Shabani, 513 U.S. 10, 16 (1994) (noting that overt act is not required to establish drug conspiracy, as “the criminal agreement itself is the actus reus”). Askew’s possession conviction required proof of “(1) possession of a narcotic controlled substance; (2) knowledge of 3 Appeal: 16-4048 the Doc: 53 possession; States v. Possession Filed: 12/20/2016 and Collins, may be (3) the 412 Pg: 4 of 9 intent F.3d actual 515, or to distribute.” 519 (4th constructive; United Cir. 2005). “[c]onstructive possession may be proved by demonstrating that the defendant exercised, or had the power to exercise, dominion and control over the item.” United States v. Burgos, 94 F.3d 849, 873 (4th Cir. banc). 1996) defendant’s conclusion (en participation that a “The same in defendant a evidence conspiracy participated in establishing may the support a a principal’s unlawful intent to possess and distribute drugs, thereby proving guilt of aiding and abetting as well.” Gomez-Jimenez, 750 F.3d at 378 (internal quotation marks omitted). Askew argues that insufficient evidence supports his possession conviction because the Government failed to prove he knowingly possessed the heroin and offered an inadequate chain of custody to establish that the heroin introduced into evidence was the heroin otherwise. recovered by law enforcement. We conclude Askew’s statement to law enforcement demonstrates that he knew the vehicle contained heroin and he was planning to assist his codefendant in packaging that heroin for sale. Askew was driving the vehicle at the time of the traffic stop and his codefendant testified that Askew placed the heroin in the bag where law enforcement found it. Accordingly, we find sufficient evidence supports Askew’s convictions. 4 Appeal: 16-4048 Doc: 53 Filed: 12/20/2016 Pg: 5 of 9 II. Askew next contends that two evidentiary rulings require a new trial. We review a district court’s evidentiary rulings for abuse of discretion. (4th Cir. 2016). court’s United States v. Faulls, 821 F.3d 502, 508 Reversal is warranted only if the district determination (internal quotation “was marks arbitrary or omitted). irrational.” Moreover, we Id. review evidentiary rulings for harmless error, which requires us to determine “with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error.” United States v. Cloud, 680 F.3d 396, 401 (4th Cir. 2012) (internal quotation marks omitted). Askew allowing first law claims that enforcement the district officers to court testify erred that in when individuals exit a vehicle during a traffic stop they are trying to separate themselves from the contents of the vehicle, that the packaging material found in the vehicle is commonly used to package heroin, and that people who spend 11 hours in a vehicle together would discuss the purpose of their trip. Askew argues that training this testimony was based on the officers’ and experience, and thus was not lay opinion testimony under Fed. R. Evid. 701, but rather expert testimony under Fed. R. Evid. 702. The Government responds that any error was harmless. 5 Appeal: 16-4048 Doc: 53 We Filed: 12/20/2016 agree with the Pg: 6 of 9 Government. Askew’s codefendants testified that the materials found in the vehicle were to be used to package the heroin. the disputed purpose of testimony, their trip. A jury could have inferred, without that passengers Moreover, would Askew discuss admitted in the his statement to law enforcement that he knew heroin was in the vehicle, a fact further supported by the Government’s witnesses. Therefore, any error in admitting the officers’ testimony was harmless. Askew next alleges that the district court erred in admitting evidence that he met his codefendant while both were incarcerated. Askew contends that the evidence was not intrinsic to the conspiracy, that its sole purpose was to paint him as a criminal, and thus, that the evidence was unfairly prejudicial. “Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.” Fed. R. Evid. 404(b)(1). admitted for other reasons. But such evidence may be Id. 404(b)(2). Rule 404(b) is not implicated if the evidence in question “concerns acts intrinsic to the alleged crime.” United States v. Otuya, 720 F.3d 183, 188 (4th Cir. 2013) (internal quotation marks omitted). “[E]vidence of other bad acts is intrinsic if, among other things, it involves the same series of transactions 6 Appeal: 16-4048 Doc: 53 Filed: 12/20/2016 Pg: 7 of 9 as the charged offense, which is to say that both acts are part of a single criminal episode.” quotation marks omitted). “if it trial.” is necessary to Id. (citation and internal Similarly, the evidence is intrinsic complete the story of the crime United States v. Kennedy, 32 F.3d 876, 885 (4th Cir. 1994) (alteration and internal quotation marks omitted). evidence is not extrinsic merely different time than the conspiracy. We on conclude that the because it occurs The at a Id. district court did not abuse its discretion in admitting this evidence because it was evidence intrinsic to the alleged crime of conspiracy. The central issue in the trial concerned Askew’s knowledge of, and participation in, his codefendant’s heroin distribution. Askew’s relationship with his codefendant was thus important for the Government to establish. Accordingly, we affirm Askew’s convictions. III. Finally, Askew argues that the district court erroneously designated him a career Sentencing Guidelines. offender under the United States The Government contends that even if the district court erred in sentencing Askew as a career offender, that error was harmless. Rather than reviewing the merits of Askew’s challenge to his career offender designation, “we may proceed directly to an assumed error harmlessness inquiry.” 7 Gomez-Jimenez, 750 F.3d at Appeal: 16-4048 Doc: 53 Filed: 12/20/2016 Pg: 8 of 9 382 (internal quotation marks omitted). “A Guidelines error is considered harmless if . . . (1) the district court would have reached the same result even if it had decided the [G]uidelines issue the other way, and (2) the sentence would be reasonable even if the [G]uidelines defendant’s favor.” issue had been decided in the Id. (internal quotation marks omitted). We must be “certain that the result at sentencing would have been the same,” absent the enhancement. United States v. Montes- Flores, 736 F.3d 357, 370 (4th Cir. 2013) (internal quotation marks omitted). Here, the district court clearly stated that it would have imposed the same sentence had it not designated Askew a career offender, and thus we may proceed to review Askew’s sentence for substantive reasonableness. See Gomez-Jimenez, 750 F.3d at 383. “When reviewing the substantive reasonableness of a sentence, we examine the totality of the circumstances to see whether the sentencing court abused its discretion in concluding that the sentence it chose satisfied the standards set forth in § 3553(a).” omitted). Id. (alteration and internal quotation marks We conclude that Askew’s sentence is substantively reasonable, factors and as the district specifically court relied on recognized the the seriousness § 3553(a) of the offense and Askew’s lengthy criminal history in imposing the 180-month imprisonment. Moreover, 8 while the district court Appeal: 16-4048 Doc: 53 recognized Filed: 12/20/2016 Askew’s argument Pg: 9 of 9 that older defendants are less likely to recidivate, it noted that Askew’s previous history indicated he might not follow that trend. IV. Accordingly, we affirm the district court’s judgment. dispense with contentions are oral argument adequately because presented in the the facts We and legal materials before this court and argument would not aid the decisional process. AFFIRMED 9

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