United States v. Alvin Glasgow , 675 F. App'x 237 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4264
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ALVIN GLASGOW, a/k/a Buju,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Liam O’Grady, District Judge.
(1:15-cr-00222-LO-1)
Submitted: December 30, 2016 Decided: January 11, 2017
Before WILKINSON, TRAXLER, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Alvin Glasgow, Appellant Pro Se. Rebeca Hidalgo Bellows, Assistant
United States Attorney, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Alvin Glasgow appeals his convictions for conspiracy to
distribute controlled substances, in violation of 21 U.S.C. § 846(2012) (Count 1); three counts of distribution of controlled
substances, in violation of 21 U.S.C. § 841 (2012) (Counts 2, 3,
and 4); five counts of possession of firearms in furtherance of
drug trafficking crimes, in violation of 18 U.S.C. § 924(c) (2012)
(Counts 5, 8, 9, 10, and 14); and possession of a firearm with an
obliterated serial number, in violation of 18 U.S.C. § 922(k)
(2012) (Count 25). He contends that (1) he was entrapped; (2) the
Government violated Brady v. Maryland, 373 U.S. 83 (1963), by
withholding information that one of his coconspirators, Elijah
Jamal Mayson, was actually an informant; (3) the Government
committed prosecutorial misconduct by failing to inform the jury
that Mayson was an informant; (4) the indictment was defective
because it failed to allege that Mayson was an informant; (5) the
district court improperly directed a verdict against Glasgow
through an improper jury instruction; and (6) his counsel provided
ineffective assistance. We affirm.
We review de novo the sufficiency of the evidence supporting
a conviction. United States v. Barefoot, 754 F.3d 226, 233 (4th
Cir. 2014). We will uphold a conviction if, viewing the evidence
in the light most favorable to the Government, “any rational trier
of fact could have found the essential elements of the crime
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charged beyond a reasonable doubt.” Id. (internal quotation marks
omitted).
“Entrapment is an affirmative defense consisting of two
related elements: government inducement of the crime, and a lack
of predisposition on the part of the defendant to engage in the
criminal conduct.” United States v. McLaurin, 764 F.3d 372, 379
(4th Cir. 2014) (internal quotation marks omitted), cert. denied,
135 S. Ct. 1842 (2015), and sub nom. Lowery v. United States, 135
S. Ct. 1843 (2015). The defendant bears the “initial burden of
presenting evidence that the government induced him to commit the
crime.” United States v. Jones, 976 F.2d 176, 179 (4th Cir. 1992).
Once the defendant has done so, the burden shifts to the government
to establish the defendant’s predisposition beyond a reasonable
doubt. Id. Thus, even if the government did induce a defendant
to commit a crime, the defense of entrapment fails if the
government can prove predisposition. United States v.
Squillacote, 221 F.3d 542, 569 (4th Cir. 2000).
Glasgow contends that he was entrapped as a matter of law.
In particular, he argues that Mayson was actually a government
informant, and thus, the Government was required to prove Glasgow’s
predisposition based on events occurring before Glasgow met with
Mayson. However, our review of the record convinces us that there
is simply no evidence that Mayson was an informant. Consequently,
it was not improper for the district court to point to the
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undercover law enforcement agent’s meeting with Mayson and Glasgow
on October 20, 2010, in ruling that Glasgow was not induced by the
Government, and that Glasgow was predisposed to commit the charged
offenses. During that meeting, Glasgow provided Ecstasy pills to
the undercover agent and proposed importing cocaine from Guyana.
In numerous other meetings, Glasgow continued to deal contraband
and discuss his plan to import cocaine from Guyana. The undercover
agent testified that he discussed his willingness to accept cash
numerous times with Glasgow. However, Glasgow continued to offer
drugs or firearms in exchange. This evidence shows both that
Glasgow was not induced and that he was predisposed.
Therefore, in light of the record, we conclude a reasonable
juror could find that Mayson was not an informant, see Barefoot,
754 F.3d at 233, and Glasgow was not entrapped as a matter of law,
see McLaurin, 764 F.3d at 379.
Next, we review for plain error a Brady claim not raised in
the district court. United States v. Catone, 769 F.3d 866, 871
(4th Cir. 2014). Glasgow contends that the Government violated
Brady by withholding information that Mayson was an informant.
However, there is no support for the assertion that Mayson was an
informant, and thus, there was no Brady violation.
We review for plain error a claim of prosecutorial misconduct
not raised in the district court. United States v. Alerre, 430
F.3d 681, 689 (4th Cir. 2005). Glasgow argues that the Government
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committed prosecutorial misconduct by failing to correct Mayson’s
statement before the jury that his only agreement with the
Government was his plea agreement, which Glasgow contends is false
because Mayson had another agreement with the Government by acting
as an informant. As explained above, the record does not support
the claim that Mayson was an informant, and thus, the Government
did not commit prosecutorial misconduct.
We review for plain error a claim of a fatally defective
indictment not raised in the district court. United States v.
Rendelman, 641 F.3d 36, 43 (4th Cir. 2011). Glasgow contends that
the indictment is defective because it failed to allege that Mayson
was an informant. Again, because the record does not show that
Mayson was an informant, the indictment is not defective.
We review challenges to jury instructions for an abuse of
discretion, “bearing in mind that a trial court has broad
discretion in framing its instructions to a jury.” Gentry v. E.
W. Partners Club Mgmt. Co., 816 F.3d 228, 233 (4th Cir. 2016)
(internal quotation marks omitted). We review de novo a claim
that the jury instructions incorrectly stated the law. Id.Glasgow contends that the district court directed a verdict
against him by giving an improper definition of “solicitation” for
purposes of his entrapment defense. The portion of the jury
instruction to which Glasgow points reads, “Solicitation by itself
is not the kind of conduct that would persuade an otherwise
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innocent person to commit a crime.” This sentence was taken from
United States v. Sligh, 142 F.3d 761, 763 (4th Cir. 1998), which
remains controlling authority in this Circuit. Thus, Glasgow’s
claim fails.
Finally, a prisoner “may raise a claim of ineffective
assistance of counsel in the first instance on direct appeal if
and only if it conclusively appears from the record that counsel
did not provide effective assistance.” United States v. Galloway,
749 F.3d 238, 241 (4th Cir. 2014) (alteration and ellipsis
omitted). Absent such a showing, ineffective assistance claims
should be raised in a motion brought pursuant to 28 U.S.C. § 2255(2012), in order to permit sufficient development of the record.
United States v. Baptiste, 596 F.3d 214, 216 n.1 (4th Cir. 2010).
Because the record here does not conclusively establish the alleged
grounds for Glasgow’s claim, Glasgow does not meet this demanding
standard. This claim should be raised, if at all, in a § 2255
motion.
Accordingly, we affirm the judgment of the district court.
Glasgow’s motions for summary reversal, to expedite decision, and
for judicial notice of adjudicative facts are denied. We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before this court and
argument would not aid the decisional process.
AFFIRMED
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