US v. William Askew, III

Filing

UNPUBLISHED PER CURIAM OPINION filed.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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UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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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

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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

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the

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possession;

States

v.

Possession

Filed: 12/20/2016

and

Collins,
may

be

(3)

the

412

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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.
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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.
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We

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agree

with

the

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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
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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

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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

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Askew’s

argument

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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