United States v. Daryl Brian Williams , 161 F. App'x 842 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 05-10254 ELEVENTH CIRCUIT
JANUARY 4, 2006
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 04-00443-CR-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DARYL BRIAN WILLIAMS,
a.k.a. Deuce,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(January 4, 2006)
Before BLACK, BARKETT and PRYOR, Circuit Judges.
PER CURIAM:
Daryl Brian Williams appeals his conviction for conspiracy to distribute
methamphetamine on the grounds that the evidence presented at trial was
insufficient to sustain his conviction and that the district court erred in admitting
into evidence drugs seized from the car he was driving when arrested. Williams
also appeals his sentence on the ground that the district court failed to satisfy the
technical requirements for its enhancement for a prior conviction. 21 U.S.C. §
851(b). Because a reasonable trier of fact could have concluded from the evidence
that Williams was guilty beyond a reasonable doubt and the drugs seized from the
car Williams was driving were probative of intent, we affirm his conviction.
Because the failure of the district court to follow the technicalities of the Section
851(b) colloquy constituted harmless error, we affirm Williams’s sentence.
I. BACKGROUND
Williams was indicted for conspiracy to possess with intent to distribute
more than 50 grams of methamphetamine. 21 U.S.C. § 846. The district court
denied Williams’s pretrial motion to exclude marijuana and cocaine seized from
the car he was driving as improper character evidence under Federal Rule of
Evidence 404(b) and overruled his objection to the admission of the evidence.
Before trial, the government filed a notice of sentence enhancement based on
Williams’s 2004 state court felony conviction for possession of cocaine. 21 U.S.C.
§ 851(a).
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At trial, Williams’s co-conspirators testified on behalf of the government
against Williams. The government introduced into evidence a videotape that
showed Williams discussing the drug conspiracy with his co-conspirators. The
jury convicted Williams on the single count of conspiracy to possess and distribute
more than 50 grams of methamphetamine.
The Pre-Sentencing Investigation Report listed Williams’s previous felony
drug conviction from 2004 and included a copy of the pretrial information
submitted by the government seeking an enhancement based on that conviction.
Williams did not object to the PSI. At the sentencing hearing, the district court
asked Williams in what year he was convicted or pleaded guilty to a drug offense,
and Williams responded that it was 2004. The district court enhanced Williams’s
sentence on the basis of this previous conviction. Williams did not object to this
sentence enhancement at the hearing.
II. STANDARD OF REVIEW
We apply three standards of review in this case. We review questions about
the sufficiency of the evidence produced at trial de novo, and the evidence is
construed in the light most favorable to the government. United States v. Fallen,
256 F.3d 1082, 1087 (11th Cir. 2001). We review questions about the
admissibility of evidence under an abuse of discretion standard and will reverse the
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district court’s decision only if the abuse of discretion affected the defendant’s
substantial rights. United States v. Delgado, 321 F.3d 1338, 1347 (11th Cir. 2003).
We review the failure of the district court to adhere to the procedural requirements
of section 851(b) for harmless error. United States v. Weaver, 905 F.2d 1466 (11th
Cir. 1990). “Non-constitutional error is harmless when it does not affect the
substantial rights of the parties. . . . The burden is on the government to show the
error did not affect the defendant’s substantial rights.” United States v. Gallegos-
Aguero, 409 F.3d 1274, 1277 (11th Cir. 2005) (internal quotations and citations
omitted).
III. DISCUSSION
Williams argues that (1) his conviction is not supported by sufficient
evidence, (2) the district court erred when it admitted evidence seized from the car
he was driving, and (3) the district court did not follow the technical requirements
of section 851(b). All three of his arguments fail. We address each in turn.
A. The Evidence Was Sufficient to Sustain Williams’s Conviction.
Williams challenges his conviction on insufficiency of the evidence grounds
because the government’s witnesses contradicted themselves and each other, and
the co-conspirators had self-interested motives to testify against Williams.
Williams argues that because these witnesses were impeached, their testimony was
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insufficient to sustain his conviction. We disagree.
The evidence was sufficient if “a reasonable trier of fact, when choosing
among reasonable constructions of the evidence, could have found the defendant
guilty beyond a reasonable doubt.” United States v. Williams, 144 F.3d 1397,
1401-02 (11th Cir. 1998) (citing United States v. Delgado, 56 F.3d 1357, 1363
(11th Cir. 1995)). We must accept all of the jury’s reasonable inferences and
credibility determinations. United States v. Ward, 197 F.3d 1076, 1079 (11th Cir.
1999) (citing United States v. Sanchez, 722 F.2d 1501, 1505 (11th Cir. 1984)). To
uphold a conviction for conspiracy to distribute methamphetamine, the government
must offer sufficient evidence to prove that: “1) an illegal agreement existed to
possess with the intent to distribute [a controlled substance]; 2) [the defendant]
knew of this agreement; and 3) [the defendant] knowingly and voluntarily joined
the agreement.” United States v. Charles, 313 F.3d 1278, 1284 (11th Cir. 2002)
(emphasis removed).
Viewing the evidence in the light most favorable to the government, the
evidence was sufficient to support Williams’s conviction. The government
introduced into evidence a video recording of a conversation between Williams
and Morrison regarding the acquisition and sale of methamphetamine. Witnesses
testified to the existence of the conspiracy and Williams’s knowing and voluntary
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participation, and a jury could reasonably credit the testimony of the witnesses
despite the impeachment.
B. The Evidence of Drugs from the Car Williams Was Driving Was Admissible.
Over Williams’s objection, the district court admitted into evidence the
cocaine and marijuana found in the car Williams was driving to allow the
government to prove Williams’s intent. There is a three-part test for admitting
extrinsic evidence of a previous criminal act under Federal Rule of Evidence
404(b): (1) the evidence is relevant to an issue other than the defendant’s character;
(2) the evidence is sufficient to support a finding that the defendant actually
committed the extrinsic act; and (3) the probative value of the evidence is not
substantially outweighed by unfair prejudice. United States v. Butler, 102 F.3d
1191, 1195 (11th Cir. 1997).
First, the drugs found in the car were probative of more than Williams’s
character. Because Williams pleaded not guilty, his intent was a material issue in
the case. United States v. Costa, 947 F.2d 919, 925 (11th Cir. 1991). Evidence of
prior drug dealings is highly probative of intent in later charges of conspiracy to
distribute a controlled substance, and it is immaterial that the type of drug in the
extrinsic evidence is different from the type of drug at issue in the conspiracy
charge. United States v. Diaz-Lizaraza, 981 F.2d 1216, 1224 (11th Cir. 1993).
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Second, sufficient evidence supports a finding that Williams possessed the
cocaine and marijuana. Williams argues that the evidence did not establish that he
was in constructive possession of the marijuana and cocaine found in the vehicle,
but he cites no cases and gives no argument beyond mere assertion that
constructive possession was not established. We have held that constructive
possession exists when a defendant has ownership, dominion, or control over the
premises or the vehicle in which the contraband is concealed. United States v.
Leonard, 138 F.3d 906, 909 (11th Cir. 1998). Because substantial testimony at
trial established that Williams was the driver of the vehicle in which the cocaine
and marijuana were located and that he had driven the vehicle in question for an
extended period of time, the evidence established that Williams had constructive
possession of the drugs in the car.
Third, the high probative value of evidence of Williams’s possession of
drugs to prove his intent to join a drug conspiracy substantially outweighed any
unfair prejudice. Williams relies heavily on United States v. Matthews to argue
that the evidence of drug possession was not probative because his intent to join
the conspiracy was not at issue, but after Williams and the government filed their
briefs, the Matthews opinion was vacated and a new opinion was substituted.
United States v. Matthews, 411 F.3d 1210 (11th Cir. 2005), vacated, — F.3d —,
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2005 WL 3291400 (11th Cir. Dec. 6, 2005). The new Matthews opinion
reaffirmed our long-standing position that a “plea of not guilty, without an
accompanying affirmative removal, [makes] intent a material issue.” Matthews, —
F.3d at —, 2005 WL 3291400, at *12. Because Williams pleaded not guilty and
did not remove his intent as an issue, his argument fails under the new Matthews
opinion. The evidence of Williams’s drug possession was of highly probative
value, which outweighed any unfair prejudice.
C. The Failure to Follow Section 851(b) Was Harmless Error.
Williams argues that the district court erred when it imposed the sentence
enhancement without following the requirements of section 851(b). When the
United States attorney has filed a pre-trial information, under section 851(a), that it
intends to seek a sentence enhancement for a previous felony drug conviction,
section 851(b) requires the district court, after conviction but before
pronouncement of sentence, to question the defendant as to whether he affirms or
denies the previous conviction and to inform the defendant that any challenge to a
previous conviction not made before sentence is imposed may not thereafter be
raised to attack the sentence. The district court asked Williams whether his felony
conviction was in 2003, and Williams effectively admitted the conviction when he
replied that the conviction was in 2004. Williams argues that this admission was
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not enough; the district court had to comply strictly with section 851(b).
Williams’s argument fails.
Our decision in Weaver established that to reverse a sentence for failure to
follow the requirements of section 851(b), prejudice or harm to the defendant must
be established. In Weaver, the defendant challenged his sentence on the grounds
that the district court failed to comply strictly with section 851(a) and (b).
Although we began our analysis by noting that we have “insisted upon strict
compliance with the mandatory language of the procedural requirements of section
851(a) and (b),” id. at 1481, we confined the strict compliance standard to our
analysis of section 851(a) and concluded that the government had complied with
its requirements. In our analysis of section 851(b), we did not require strict
compliance. We affirmed the sentence because the defendant had effectively
admitted to the previous conviction and failed to object to its inclusion in the PSI,
and even if the defendant had objected, the convictions were more than five years
old and could no longer be challenged under section 851.
Here, as in Weaver, the government filed the information as required by
section 851(a), which put Williams on notice that government would seek the
sentence enhancement, and the PSI listed the previous felony drug conviction.
Williams did not object to either. Williams also did not object to the enhancement
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during the sentencing hearing, and when asked by the district court in what year he
was convicted of the drug offense, he replied 2004. Because Williams admitted to
the previous felony conviction, there was no harm to his substantial rights based on
the failure of the district court to ask him whether he denied or affirmed the
conviction. Although the district court did not inform Williams that, if he did not
challenge the previous conviction at the hearing, he could not use it to attack the
sentence at a later time, this error, after Williams’s admission, also was harmless.
Williams argues in his reply brief that when he told the district court that his
conviction was in 2004, he was referring to his guilty plea to a misdemeanor
charge, not the felony drug charge. We find no merit in this argument. Williams
was informed before trial began that the government would seek a sentence
enhancement for the felony conviction of 2004, not the misdemeanor, and a copy
of this same information was included in the PSI, which the district court used
when deciding the sentence. Furthermore, Williams’s argument is not credible
because the sentencing for the guilty plea for both the felony and misdemeanor
occurred on the same day at the same hearing.
IV. CONCLUSION
We affirm both Williams’s conviction and sentence.
AFFIRMED.
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