leaving a voice message for witness stating, “loose lips sink ships” and “you should be running instead of running your mouth” and witness testifying that they considered such statements to be a threat
How later courts described this case
- leaving a voice message for witness stating, “loose lips sink ships” and “you should be running instead of running your mouth” and witness testifying that they considered such statements to be a threat
Written by the judges who cited it.
The opinion
Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
9-26-2008
USA v. Carter
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-1111
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008
Recommended Citation
"USA v. Carter" (2008). 2008 Decisions. Paper 482.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/482
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2008 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 07-1111
_____________
UNITED STATES OF AMERICA
v.
CURTIS CARTER,
Appellant
_____________
On Appeal from United States District Court
for the Western District of Pennsylvania
(D.C. No. 05-cr-00347-3)
District Judge: Honorable Alan N. Bloch
____________
Submitted Under Third Circuit L.A.R. 34.1(a)
on September 12, 2008
____________
Before: SLOVITER, FUENTES and ALDISERT, Circuit Judges
(Filed September 26, 2008)
OPINION
ALDISERT, Circuit Judge
In his appeal from conviction and sentence for conspiracy to possess with intent to
distribute 500 grams or more of cocaine under 21 U.S.C § 846, Curtis Carter makes three
arguments: (a) that the United States District Court for the Western District of
Pennsylvania abused its discretion in admitting evidence of his marijuana distribution; (b)
that the District Court clearly erred in making certain findings relating to its calculation of
Carter’s sentence; and (c) that the sentence imposed was unreasonable. We affirm.
I.
The District Court acted well within its discretion in admitting evidence of Carter’s
marijuana distribution. Carter contends that the District Court should have applied the
balancing test articulated in United States v. Sampson, 980 F.2d 883 (3d Cir. 1992).
Because the evidence of marijuana distribution was direct evidence of Carter’s
relationship with his co-conspirators, rather than evidence of “other acts,” Sampson is not
relevant here. Sampson applies only to evidence admitted under Rule 404(b), Federal
Rules of Evidence. Id. at 886.
II.
We are not impressed by Carter’s assertion that the District Court made several
errors at sentencing: (a) improperly calculating the amount of cocaine Carter was
responsible for distributing; (b) enhancing Carter’s base offense level by four levels under
U.S.S.G. § 3B1.1(a); and (c) further enhancing Carter’s sentence based upon a
2
determination of obstruction of justice.
A.
The District Court found that Carter was responsible for distributing over 15
kilograms of cocaine pursuant to U.S.S.G. § 2D1.1. Fact finding by a judge shall not be
set aside “unless clearly erroneous, and the reviewing court must give due regard to the
trial court’s opportunity to judge the witnesses’ credibility.” Rule 52(6), Federal Rules of
Civil Procedure. “Clearly erroneous” has been interpreted to mean that a reviewing court
may upset a finding of fact, even if there is some evidence to support the finding, only if
the court is left with “the definite and firm conviction that a mistake has been
committed.” United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948). This means the
appellate court must accept the factual determination of the fact finder unless that
determination “either (1) is completely devoid of minimum evidentiary support displaying
some hue of credibility, or (2) bears no rational relationship to the supportive evidentiary
data.” Krasnov v. Dinan, 465 F.2d 1298, 1302 (3d Cir. 1972).
Testimony of several witnesses established that Carter trafficked more than 15
kilograms of cocaine, and the District Court determined that these witnesses were “very
credible.” App. 575. We accord “great deference to a presiding judge’s credibility
determinations in sentencing proceedings because she is able to directly observe a
testifying witness’s tone and demeanor.” United States v. Leekins, 493 F.3d 143, 150 (3d
3
Cir. 2007).
B.
Carter contends that the District Court erred in enhancing his offense level by four
levels under U.S.S.G. § 3B1.1(a). Under § 3B1.1(a), the sentencing court may increase
the offense level by four levels “[i]f the defendant was an organizer or leader of a
criminal activity that involved five or more participants or was otherwise extensive.”
U.S.S.G. § 3B1.1(a). A “defendant must have been the organizer, leader, manager, or
supervisor of one or more other participants” to qualify for this enhancement. Id. § 3B1.1,
cmt. n. 2.
The District Court concluded that Carter qualified for an enhancement under §
3B1.1(a). Sufficient evidence indicates that Carter functioned as a leader and organizer of
an extensive cocaine distribution conspiracy involving more than five participants. He
organized trips to Columbus, Ohio, to obtain large amounts of cocaine for his co-
conspirators and orchestrated sales between co-conspirators when he was out of town.
See App. 288-290. He also exerted control over the participants of the conspiracy when
he excluded a co-conspirator from the enterprise because the co-conspirator attempted to
sell Carter’s cocaine back to Carter at a higher price. Id. at 442-443.
C.
We are satisfied with the District Court’s finding that Carter obstructed justice
4
pursuant to § 3C1.1. Obstruction of justice under U.S.S.G. § 3C1.1 includes “threatening,
intimidating, or otherwise unlawfully influencing a . . . witness . . . directly or indirectly,
or attempting to do so.” U.S.S.G. § 3C1.1, cmt. n. 4(a). Carter threatened a government
witness when, in a voice message for a witness, he said, “loose lips sink ships” and “you
should be running instead of running your mouth.” App. 292. The following exchange
about those statements occurred between the witness and the prosecution:
Q. And how did you take that? What did you interpret that to
mean? Did you consider it a threat?
A. Yes.
Id. at 295.
III.
The District Court gave meaningful consideration to the 18 U.S.C. § 3553(a)
factors and concluded that Carter’s sentence was reasonable. The burden to show
unreasonableness rests on the party challenging the sentence, and this Court gives
deference to a district court’s judgment on whether sentencing was reasonable under §
3553(a). United States v. Cooper, 437 F.3d 324, 330 (3d Cir. 2006). A district court need
not state on the record that it has explicitly considered each of the § 3553(a) factors or
record its consideration of each factor. Instead, “[t]he record must demonstrate the trial
court gave meaningful consideration to the § 3553(a) factors.” Id. at 329.
Here, the District Court considered “the nature and circumstances of the offense
and the history and characteristics of the defendant,” 18 U.S.C. § 3553(a)(1); “the need
5
for the sentence imposed to reflect the seriousness of the offense, to promote respect for
the law, and to provide just punishment,” id. § 3553(a)(2)(A); “the need for the sentence
imposed to afford adequate deterrence to criminal conduct,” id. § 3553(a)(2)(B); and “the
need for the sentence imposed to protect the public from further crimes of the defendant,”
id. § 3553(a)(2)(C). See App. 543, 568-577.
*****
We have considered all of the contentions presented by the parties and conclude
that no further discussion is necessary.
The judgment of the District Court will be affirmed.
6