United States v. Crawford , 317 F. App'x 303 ( 2008 )


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  •                             UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 07-5096
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.
    SHAKEEM HERATIO CRAWFORD,
    Defendant - Appellant.
    No. 08-4029
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.
    SHAKEEM HERATIO CRAWFORD,
    Defendant - Appellant.
    Appeals from the United States District Court for the Northern
    District of West Virginia, at Martinsburg. John Preston Bailey,
    District Judge. (3:06-cr-00069-JPB-1)
    Submitted:   July 2, 2008                Decided:   September 5, 2008
    Before WILKINSON, TRAXLER, and SHEDD, Circuit Judges.
    Affirmed by unpublished per curiam opinion.
    Lary D. Garrett, GARRETT & GARRETT, Moorefield, West Virginia, for
    Appellant. Sharon L. Potter, United States Attorney, Thomas O.
    Mucklow, Assistant United States Attorney, Martinsburg, West
    Virginia, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
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    PER CURIAM:
    Shakeem Heratio Crawford was convicted after a jury trial
    of one count of conspiracy to possess with intent to distribute and
    to distribute in excess of fifty grams of crack cocaine, in
    violation of 
    21 U.S.C. §§ 841
    (a)(1), (b)(1)(A), 846 (2000); one
    count of distribution of crack cocaine and two counts of possession
    with intent to distribute crack cocaine, in violation of 
    21 U.S.C. § 841
    (a)(1).      In the presentence report (PSR), the probation
    officer grouped all counts and determined that Crawford’s relevant
    conduct totaled between 351.96 and 355.209 grams of crack cocaine,
    which yielded a base offense level of thirty-two pursuant to U.S.
    Sentencing     Guidelines   Manual   (USSG)     §   2D1.1(c)(4)     (2007).
    Crawford’s    prior   criminal   activity,    however,   resulted   in   his
    designation as a career offender pursuant to USSG § 4B1.1(b)(B),
    which increased his offense level to thirty-seven and mandated a
    criminal history category of VI.          The Guidelines range was 360
    months to life imprisonment.
    Crawford filed several objections to the PSR, only two of
    which are relevant to this appeal.           First, he asserted that the
    March 18, 1998, New York state conviction for attempted sale of a
    controlled substance was not a felony conviction and thus could not
    serve as a predicate for career offender sentencing.                He also
    objected to the PSR’s determination of his drug quantity relevant
    conduct as unsupported by the evidence at trial.             The district
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    court overruled Crawford’s objection to the characterization of his
    1998 conviction as a felony controlled substance offense and found
    that he was a career offender, which mooted his other objections.
    The court also denied Crawford’s request for a downward departure
    or variance, and sentenced him to 360 months of imprisonment, ten
    years   of    supervised    release,   and   a   $400   special   assessment.
    Crawford timely appealed.       We affirm.
    On   appeal,   Crawford   asserts    several    errors   by   the
    district court.      He first argues that the district court erred in
    denying his motion for judgment of acquittal at the close of the
    Government’s case, and in denying his motion for a new trial.               He
    claims that the evidence was insufficient to send the case to the
    jury, or to sustain the jury’s verdict, in that it was insufficient
    to establish that he was in fact the person, “Nico,” described by
    the   Government’s witnesses.     He does not assert that the crimes in
    question did not occur, but rather that he was not the person who
    committed those crimes.
    This court reviews the district court’s denial of a
    motion for judgment of acquittal de novo, and its ruling on a
    motion for a new trial for abuse of discretion.                   See United
    States v. Ryan-Webster, 
    353 F.3d 353
    , 359 (4th Cir. 2003); United
    States v. Rhynes, 
    206 F.3d 349
    , 360 (4th Cir. 1999) (en banc).               A
    defendant challenging the sufficiency of the evidence faces a heavy
    burden.      United States v. Beidler, 
    110 F.3d 1064
    , 1067 (4th Cir.
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    1997). “[A]n appellate court’s reversal of a conviction on grounds
    of insufficient evidence should be confined to cases where the
    prosecution’s failure is clear.”         United States v. Jones, 
    735 F.2d 785
    , 791 (4th Cir. 1984).          A jury’s verdict must be upheld on
    appeal if there is substantial evidence in the record to support
    it.      Glasser v. United States, 
    315 U.S. 60
    , 80 (1942).                    In
    determining whether the evidence in the record is substantial, this
    court views the evidence in the light most favorable to the
    government,    and     inquires   whether   there     is   evidence    that   a
    reasonable finder of fact could accept as adequate and sufficient
    to support a conclusion of a defendant’s guilt beyond a reasonable
    doubt.    United States v. Burgos, 
    94 F.3d 849
    , 862 (4th Cir. 1996)
    (en banc).    In evaluating the sufficiency of the evidence, we do
    not review the credibility of the witnesses and assume that the
    jury resolved all contradictions in the testimony in favor of the
    government.    United States v. Romer, 
    148 F.3d 359
    , 364 (4th Cir.
    1998).     Our review of the record leads us to conclude that the
    evidence was sufficient to establish Crawford’s guilt.
    Crawford    next   asserts   that   the   Government      committed
    reversible error during the testimony of Trooper Brian Bean when
    the Assistant United States Attorney (AUSA) attempted to elicit
    hearsay testimony.      Although he states that the standard of review
    is for abuse of discretion, Crawford does not assert any error by
    the district court in its response to his objections to this
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    testimony. Contrary to Crawford’s argument, the Government did not
    place inadmissible hearsay before the jury, because the district
    court sustained his objections before Trooper Bean could state the
    basis for his belief that Crawford’s information was consistent
    with other information developed in the investigation.
    To the extent Crawford’s argument can be construed as
    alleging prosecutorial misconduct, it is without merit. A claim of
    prosecutorial misconduct is reviewed to determine whether the
    conduct complained of so infected the trial with unfairness as to
    make the resulting conviction a denial of due process.                 United
    States v. Scheetz, 
    293 F.3d 175
    , 185 (4th Cir. 2002).            To prevail
    under this standard, Crawford must show that “the prosecutor’s
    remarks or conduct were improper and, second . . . that such
    remarks or conduct prejudicially affected his substantial rights”
    so as to deprive him of a fair trial.       
    Id.
         The questioning in this
    instance   was   not   improper,   but     rather    part   of   the   normal
    examination of a witness that may elicit an objectionable answer.
    Nor did this questioning prejudice Crawford, as no actual hearsay
    was placed before the jury.    Crawford is not entitled to relief on
    this claim.
    Crawford also argues that the district court erred in
    sustaining the Government’s objection and prohibiting him from
    mentioning an indicted co-conspirator as a missing witness.             “The
    district court is afforded broad discretion in controlling closing
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    arguments and is only to be reversed when there is a clear abuse of
    its discretion.”      United States v. Rhynes, 
    196 F.3d 207
    , 236 (4th
    Cir. 1999).     “It is well settled that the rule regarding missing
    witness instructions is that if a party has it peculiarly within
    his [or her] power to produce witnesses whose testimony would
    elucidate the transaction, the fact that he [or she] does not do it
    creates the presumption that the testimony, if produced, would be
    unfavorable.”       United States v. Brooks, 
    928 F.2d 1403
    , 1412 (4th
    Cir. 1991) (internal quotation marks omitted).                      Crawford has
    produced no evidence that the witness was accessible only to the
    Government, or any other reason that he could not have subpoenaed
    the witness to testify at trial.            The district court did not abuse
    its   discretion     in    sustaining      the     Government’s     objection    to
    Crawford’s argument.
    Crawford next asserts that the district court erred in
    overruling    his    objection      to    the    AUSA’s   statements      regarding
    reasonable doubt during final argument, and that the AUSA plainly
    erred in that same argument in stating that the Constitution had
    nothing to do with this case.              Our review of the statements in
    question, in the context of the arguments as a whole, leads us to
    conclude   that     the   remarks    about       standards   of   proof   were   not
    improper, but were an appropriate response to the remarks of
    Crawford’s counsel.         The AUSA’s remarks about the Constitution
    were, although perhaps unnecessary, not improper.                      The jury’s
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    function   was   to   decide    whether       the   Government   had     produced
    sufficient evidence to establish the facts necessary to prove
    Crawford’s guilt.      Any Constitutional issues were the exclusive
    province of the trial judge.         Crawford is not entitled to relief on
    this claim.
    Crawford next argues that the district court erred in
    concluding that he was a career offender and that his relevant
    conduct greatly exceeded fifty grams of crack cocaine.                  Crawford
    was classified as a career offender based on two prior felony
    convictions for a controlled substance offense. Crawford claims he
    has only one prior felony conviction of a controlled substance
    offense.   In considering the district court’s application of the
    Guidelines, this court reviews factual findings for clear error and
    legal conclusions de novo.        United States v. Allen, 
    446 F.3d 522
    ,
    527 (4th Cir. 2006).           Crawford argues, as he did before the
    district court, that his 1998 New York conviction for attempted
    sale of heroin is not a felony controlled substance offense.                    Our
    review of the record convinces us otherwise.              The district court
    properly determined that Crawford was a career offender, and
    correctly calculated his Guidelines sentencing range.                  Because he
    was   properly   classified     as    a   career    offender,    any    error    in
    determining the relevant conduct drug quantity had no effect on his
    Guidelines range.
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    Crawford’s final argument is that his 360-month sentence
    is an abuse of discretion in that the district court erred in
    denying his motion for departure or variance because his criminal
    history category overstated the seriousness of his past criminal
    conduct.    Regarding Crawford’s request for a downward departure,
    the    record    reflects   that    the     district    court    recognized      its
    authority   to    depart    but    concluded    that    a   departure      was   not
    warranted on the facts of this case.                  The court’s decision is
    therefore not reviewable on appeal.            United States v. Brewer, 
    520 F.3d 367
    , 371 (4th Cir. 2008).
    We review a sentence for reasonableness, applying an
    abuse of discretion standard.          Gall v. United States, 
    128 S. Ct. 586
    , 597 (2007).      As discussed above, Crawford’s Guidelines range
    was correctly calculated, and the record reveals that the district
    court explicitly stated that it considered the factors set forth in
    
    18 U.S.C.A. § 3553
    (a) (West 2000 & Supp. 2008), and explained its
    reasons for selecting the sentence imposed. Crawford’s sentence is
    thus   without    procedural      defect.      This    court    presumes    that   a
    sentence imposed within the properly calculated Guidelines range is
    reasonable.      United States v. Go, 
    517 F.3d 216
    , 218 (4th Cir.
    2008); see Rita v. United States, 
    127 S. Ct. 2456
    , 2462-69 (2007)
    (upholding presumption of reasonableness for within-Guidelines
    sentence). The record contains nothing that indicates the district
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    court abused its discretion in selecting a 360-month sentence,
    which was the bottom of the applicable Guidelines range.
    Accordingly,   we   affirm    Crawford’s   convictions   and
    sentence.    We dispense with oral argument because the facts and
    legal contentions are adequately presented in the materials before
    the court and argument would not aid the decisional process.
    AFFIRMED
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