United States v. Brock , 190 F. App'x 279 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4994
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MARK ANTHONY BROCK,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Big Stone Gap. James P. Jones, Chief
District Judge. (CR-04-10060)
Submitted: June 21, 2006 Decided: July 17, 2006
Before WILLIAMS, MOTZ, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Joseph W. Rasnic, Jonesville, Virginia, for Appellant. John L.
Brownlee, United States Attorney, Jennifer R. Bockhorst, Assistant
United States Attorney, Abingdon, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Mark Anthony Brock appeals his conviction and 240-month
sentence imposed for three counts of distribution of a schedule II
controlled substance to a person under twenty-one years of age, in
violation of 21 U.S.C. §§ 841(b)(1)(C), 859 (2000), and two counts
of distribution of morphine, in violation of 18 U.S.C.
§ 841(b)(1)(C) (2000). On appeal, Brock argues that it was error
for the district court to deny his motion to sever counts five and
six, relating to two controlled purchases of narcotics by
government agents, from counts one through four, relating to the
distribution of narcotics to two friends. Brock also contends the
district court abused its discretion by imposing a substantial
upward departure. Finding no error, we affirm.
This court reviews the denial of a motion to sever for an
abuse of discretion. United States v. Rhodes, 32 F.3d 867, 872
(4th Cir. 1994). We have held that all counts charged in a single
indictment are generally tried together. United States v. Samuels,
970 F.2d 1312, 1315 (4th Cir. 1992). To obtain a severance under
Fed. R. Crim. P. 14, a defendant must show that the joinder “was so
manifestly prejudicial that it outweighed the dominate concern with
judicial economy and compelled exercise of the court’s discretion
to sever.” United States v. Acker, 52 F.3d 509, 514 (4th Cir.
1995) (citing United States v. Armstrong, 621 F.2d 951, 954 (9th
Cir. 1980)). The burden is upon the defendant to make a
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particularized showing of prejudice from the denial of a severance
motion. United States v. Clark, 928 F.2d 639, 645 (4th Cir. 1991).
Where evidence of the crimes “would be mutually
admissible for legitimate purposes in separate trial for each
offense,” the possibility of prejudice requiring severance is
“greatly diminished.” United States v. Cole, 857 F.2d 971 (4th
Cir. 1988). If much of the evidence could have been properly
introduced in separate trials under Fed. R. Evid. 404(b), then the
possibility of prejudice is greatly mitigated. Id. The
possibility of prejudice is further reduced if an instruction is
given to the jury cautioning them to consider the evidence of each
crime separately. Id.We find that the district court properly denied Brock’s
motion to sever counts five and six. Because the evidence would
have been admissible in separate trials for each group of charges,
the interests of judicial economy were furthered, and the court
gave a limiting instruction that guarded against the possibility of
prejudice, we find the district court did not abuse its discretion.
Brock’s sentence of 240 months’ imprisonment was based on
an upward departure from the guidelines range of 110 to 137 months’
imprisonment pursuant to U.S. Sentencing Guidelines Manual § 5K2.0.
Although the district court’s ultimate decision to depart is
reviewed de novo, we review the factual findings underlying that
decision for clear error, and the extent of the departure for
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reasonableness. United States v. Davis, 380 F.3d 183, 187-88 (4th
Cir. 2004). The district court must first determine the guidelines
range and, if a sentence within that range is not adequate to meet
the sentencing factors set forth pursuant to 18 U.S.C.A. § 3553(a)
(West 2000 & Supp. 2005), the court may “look to whether a
departure is appropriate based on the Guidelines Manual or relevant
case law.” United States v. Moreland, 437 F.3d 424, 432 (4th Cir.)
(explaining procedure to be followed when guidelines range is
inadequate, and discussing difference between departures under the
guidelines and variance sentences), cert. denied, 126 S. Ct. 2054(2006).
Brock does not challenge the district court’s calculation
of the guidelines range. Moreover, the court provided cogent
reasons for departing from that range, including Brock’s providing
illicit drugs to a minor who did not want the drugs, failing to
seek assistance for a person who overdosed on drugs in his
presence, and hiding the overdose victim’s body in the woods so
Brock’s involvement in the victim’s death would not be discovered.
On this record, we cannot say that the district court erred in
applying an upward departure. See Moreland, 437 F.3d at 432-33;
see generally United States v. Green, 436 F.3d 449, 455-56 (4th
Cir. 2006), cert. denied, __ U.S. __, 2006 WL 1057741 (U.S. May 22,
2006) (No. 05-10474). Moreover, we conclude that the extent of the
departure was reasonable.
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Accordingly, we affirm the conviction 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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