United States v. Brown

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 95-5800

WESLEY BROWN,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 95-5802

EDWARD JOHNSON,

Defendant-Appellant.

Appeals from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Claude M. Hilton, District Judge.

(CR-95-184-A)

Submitted: August 22, 1996

Decided: September 10, 1996

Before RUSSELL, HALL, and WILLIAMS, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Robert E. Battle, ROBERT E. BATTLE, P.C., Alexandria, Virginia;

Eric M. Weight, WEIGHT & WEIGHT, Alexandria, Virginia, for

Appellants. Helen F. Fahey, United States Attorney, Glenn C. Alex-

ander, Special Assistant United States Attorney, Alexandria, Virginia,

for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Wesley Brown and Edward Johnson were convicted in a bench trial

of possessing more than five grams of crack cocaine with intent to

distribute on August 2, 1994, 21 U.S.C.A. § 841 (West 1981 & Supp.

1996). The district court found them not guilty of conspiracy. Both

appeal their convictions, alleging that the evidence was insufficient.

They appeal their sentences on the grounds that the amount of crack

attributable to each of them as relevant conduct was wrongly calcu-

lated, USSG §§ 1B1.3, 2D1.1,1 and that the district court failed to

resolve their objections to the presentence report. Johnson also con-

tends that two prior sentences for misdemeanors were improperly

included in his criminal history score. We affirm.

The government's evidence at trial showed that on August 2, 1994,

Brown and Johnson met in Woodbridge, Virginia, at the house of

Mary Ashby, who is Brown's sister and Johnson's cousin. Ashby was

then working as a confidential informant. Brown told Ashby he was

going into Washington, D.C., to get crack and asked her for the keys

to her disabled Mustang so he could store the crack in it when he

returned. Brown left with Johnson and a friend of Johnson's. Later in

the evening, police videotaped a car with three men in it which

stopped in front of Ashby's house. At trial, Ashby identified the men

in the video as Brown, who got out of the car, opened the Mustang

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1 United States Sentencing Commission, Guidelines Manual (Nov.

1994).

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and put something in it, Johnson, who shook hands with Brown after

the Mustang was closed again, and Johnson's friend, who had been

at her house with him earlier. After the men left, police found 9.55

grams of crack in the glove compartment of the Mustang.

A conviction must be sustained if there is substantial evidence to

support it when the evidence and reasonable inferences from it are

viewed in the light most favorable to the government, Glasser v.

United States, 315 U.S. 60, 80 (1942). The government was required

to prove knowing possession of the crack with intent to distribute on

the part of both Brown and Johnson. United States v. Rusher, 966

F.2d 868, 878 (4th Cir.), cert. denied, 506 U.S. 926 (1992). Posses-

sion may be actual or constructive; to show constructive possession,

the defendant must exercise, or have power to exercise, dominion and

control over the item. United States v. Bell, 954 F.2d 232, 235 (4th

Cir. 1992). Dominion and control need not be exclusive to the defen-

dant. United States v. Wright, 991 F.2d 1182, 1187 (4th Cir. 1993).

Ashby and her nephew, Domonic Bradley, testified that both Brown

and Johnson had obtained crack and sold it during 1993 and 1994.

The videotape showed them sharing possession or constructive pos-

session of 9.55 grams of crack. Possession of an amount of drugs too

large for personal use establishes intent to distribute. Rusher, 966

F.2d at 879. Nine grams is an amount consistent with dealing rather

than personal use. United States v. Lamarr, 75 F.3d 964, 973 (4th Cir.

1996), petition for cert. filed, ___ U.S.L.W. ___ (U.S. June 10, 1996)

(No. 95-9398). On the evidence presented, the evidence was sufficient

to convict Brown and Johnson.

Based on trial testimony from Ashby and Bradley and a statement

given by Brown to Drug Enforcement Administration agents after his

arrest, the probation officer recommended that the total relevant con-

duct for both Brown and Johnson was 952 grams of crack. The rec-

ommended base offense level was 38 (500 grams to 1.5 kilograms of

crack). USSG § 2D1.1. In his statement, Brown admitted that he col-

laborated with Johnson in making purchases totalling more than 500

grams of crack for distribution between October of 1993 and August

of 1994. The probation officer suggested that Johnson was responsi-

ble for the whole amount even though he was incarcerated from

December 22, 1993, to March 16, 1994, and under intensive supervi-

sion from March 18, 1994, to June 8, 1994, because he acted in con-

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cert with Brown and all of Brown's purchases were reasonably

foreseeable to him. See USSG § 1B1.3(a)(1)(B).

On appeal, Appellants argue that in adopting the probation officer's

recommendation the district court considered unreliable evidence,

should have used a clear and convincing standard of proof, and should

not have considered conduct prior to the offense of conviction. We

find none of these arguments persuasive. The testimony given by

Ashby and Bradley was corroborated by Brown's own statement. A

preponderance of the evidence standard is properly used to decide

factual questions at sentencing. McMillan v. Pennsylvania, 477 U.S.

79, 91 (1986). And relevant conduct in drug offenses may include

acts which were outside the count of conviction but part of the same

course of conduct. USSG § 1B1.3(a)(2). Moreover, the Defendants'

due process rights were not violated by the court's consideration of

Brown's statement even though the statement was excluded from evi-

dence at trial2 because they had notice of the statement and the oppor-

tunity to rebut it. United States v. Bowman, 926 F.2d 380, 382 (4th

Cir. 1991). Johnson and Bowman were sentenced together, so John-

son had the opportunity to cross-examine Brown about the statement.

He did not do so.

We find no merit in Appellants' claim that the court failed to

resolve their objections concerning relevant conduct. The district

court's adoption of the recommended finding in the presentence

report adequately resolved the issues they raised because the ruling

was clear. See United States v. Walker, 29 F.3d 908, 911 (4th Cir.

1994).

Last, Johnson objected in his sentencing memorandum to having

two prior sentences of 180 days and 9 months probation for misde-

meanor convictions counted in his criminal history because the Dis-

trict of Columbia records did not show conclusively that he was

represented by counsel. He also suggested that his probationary sen-

tence might have been revoked and a prison term imposed. Under

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2 The statement was not admitted at trial because defense counsel did

not receive until the day of trial an additional incriminating statement by

Brown which was in the agent's notes but not in the DEA report pro-

vided during discovery.

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Nichols v. United States, 511 U.S. 738, #6D6D 6D# (1994), a prior uncoun-

seled misdemeanor conviction is valid and may be used to enhance

the sentence for a subsequent offense only if no prison term was

imposed. See also Scott v. Illinois, 440 U.S. 367, 373-74 (1979) (no

constitutional right to counsel when no prison term imposed for mis-

demeanor offense).

Johnson conceded at sentencing that the District of Columbia Code

requires that all defendants facing a loss of liberty have representation

unless they waive it, see D.C. Code Ann.§ 11-2602 (1991), but con-

tended that the government had failed to prove that he was repre-

sented. However, he provided no evidence that he lacked

representation in connection with either of the prior convictions or

that his probation had been revoked in the second case. While a

defendant may challenge at sentencing the validity of a prior convic-

tion on the ground that he was denied counsel, Custis v. United States,

511 U.S. 485, ___ (1994), he bears the burden of showing that the

prior conviction is invalid. United States v. Jones, 977 F.2d 105, 110

(4th Cir. 1992), cert. denied, 507 U.S. 939 (1993); see also Parke v.

Raley, 506 U.S. 20, 28-34 (1992) (presumption of regularity attached

to final judgments makes it appropriate that defendant have burden of

showing invalidity of prior plea). Because Johnson failed to show by

a preponderance of the evidence that he lacked counsel, the district

court did not err in awarding criminal history points for both convic-

tions.

We therefore affirm the convictions and sentences. We dispense

with oral argument because the facts and legal contentions are ade-

quately presented in the materials before the court and argument

would not aid the decisional process.

AFFIRMED

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