United States v. Gunn ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4921
RICHARD EDWARD GUNN,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Virginia, at Danville.
Jackson L. Kiser, Senior District Judge.
(CR-97-70002)
Submitted: June 2, 1998
Decided: June 19, 1998
Before HAMILTON and MICHAEL, Circuit Judges, and
HALL, Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Rhonda L. Overstreet, LUMSDEN, OVERSTREET & HANSEN,
Roanoke, Virginia, for Appellant. Robert P. Crouch, Jr., United States
Attorney, Ruth E. Plagenhoef, Assistant United States Attorney, Col-
leen M. Shook, Third Year Law Student, Roanoke, Virginia, for
Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Richard Gunn appeals his conviction for aiding and abetting the
distribution of crack cocaine in violation of 18 U.S.C. § 2 (1994), and
21 U.S.C. § 841(a)(1) (1994). Finding no merit to his claims, we
affirm.
On September 5, 1996, Larry Cunningham, a confidential infor-
mant working for local law enforcement officials, was standing at a
telephone booth making preparations to make a controlled purchase
of cocaine when Alphonso Stephens approached him. At Stephens'
prompting, Cunningham revealed that he was looking to buy seven
grams of cocaine. Stephens responded that he knew someone who
could provide the cocaine, and then called Gunn to get a price for
Cunningham. Stephens quoted Cunningham a price of $350 and
arranged to have Gunn meet him and Cunningham at a different loca-
tion in thirty minutes. Cunningham and Stephens then each drove to
the arranged meeting place and waited for Gunn. Gunn eventually
drove up accompanied by another person. Stephens got into Gunn's
car, obtained the cocaine, walked back to Cunningham and gave him
the cocaine, and then returned to the car and gave the $350 to Gunn.
Based on these events Gunn was convicted of aiding and abetting the
distribution of cocaine and was sentenced to 160 months imprison-
ment.
Gunn's first claim is that there was insufficient evidence to support
his conviction. To sustain a conviction, this court must find that the
evidence, when viewed in a light most favorable to the government,
was sufficient for a rational trier of fact to have found the essential
elements of the crime beyond a reasonable doubt. United States v.
Brewer, 1 F.3d 1430, 1437 (4th Cir. 1993). Circumstantial as well as
direct evidence is considered, and the government is given the benefit
of all reasonable inferences from the facts proven to those sought to
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be established. United States v. Tresvant, 677 F.2d 1018, 1021 (4th
Cir. 1982).
Gunn's assertion that this court should reverse his conviction
because at sentencing the district court allegedly cast doubt on the
veracity of Stephens' testimony is unpersuasive. At trial Cunningham
identified Gunn as the person he saw driving the car that Stephens got
into to get the cocaine. Stephens testified that he sold cocaine for
Gunn on a regular basis, and that he arranged and delivered cocaine
to Cunningham that he obtained from Gunn. We find that this testi-
mony was sufficient evidence from which a reasonable jury could
have found Gunn guilty of aiding and abetting the distribution of
cocaine.
Gunn next claims that the district court erred in sentencing him to
the upper end of the guideline range. Gunn alleges that the district
court impermissibly considered a pending state drug charge when
imposing sentence in violation of United States Sentencing Guidelines
Manual ("U.S.S.G.") § 1B1.4 (1996). Specifically, Gunn contends
that because the court sustained his objection to including 22.81
grams of cocaine stemming from a pending state distribution charge
in calculating the amount of drugs for sentencing purposes, the court
should not have considered this charge when imposing sentence. He
further claims that the court failed to sufficiently articulate its reasons
for sentencing him at the upper end of the guideline range.
This court reviews legal issues involving the application of the
Guidelines de novo. See United States v. Daughtrey, 874 F.2d 213,
217 (4th Cir. 1989). Title 18 U.S.C. § 3661 provides that "[n]o limita-
tion shall be placed on the information concerning the background,
character, and conduct of a person convicted of an offense which a
court of the United States may receive and consider for the purpose
of imposing an appropriate sentence." This language is echoed by the
sentencing guidelines, which provide that "any information" may be
considered by the court when imposing sentence, and that "Congress
intended that no limitation would be placed on the information that
a court may consider in imposing an appropriate sentence." U.S.S.G.
§ 1B1.4 & comment. (backg'd.).
Gunn's assertion that the district court can not consider a pending
charge when deciding where within the applicable guideline range to
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impose sentence contradicts the plain language of both § 3661 and the
sentencing guidelines. The district court sentenced Gunn to the upper
end of the guideline range based on his extensive criminal history in
full accordance with § 3661 and § 1B1.4. Finally, the record belies
Gunn's claim that the district court failed to specify its reasons for
imposing a 160-month sentence.
Accordingly, we affirm Gunn's conviction. We dispense with oral
argument because the facts and legal contentions are adequately pres-
ented in the materials before the court and argument would not aid the
decisional process.
AFFIRMED
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