United States v. Lamatavous Collins , 493 F. App'x 418 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4985
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
LAMATAVOUS REGTEZ COLLINS, a/k/a Red,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Aiken. Margaret B. Seymour, District Judge.
(1:10-cr-00466-MBS-3)
Submitted: August 8, 2012 Decided: August 23, 2012
Before MOTZ, DUNCAN, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Gregory P. Harris, HARRIS & GASSER, LLC, Columbia, South
Carolina, for Appellant. William N. Nettles, United States
Attorney, J.D. Rowell, Assistant United States Attorney,
Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A federal jury convicted Lamatavous Regtez Collins of
conspiracy to possess with intent to distribute and distribute
cocaine and marijuana, in violation of 21 U.S.C. § 846 (2006).
The district court sentenced Collins to 360 months of
imprisonment, and he now appeals. Finding no error, we affirm.
Collins first argues that the district court erred in
denying his motion to suppress statements he made to the
Government pursuant to a proffer agreement, admissible by virtue
of his violation of that agreement, where the Government
provided Collins with phone calls, recorded by a cooperating
witness, after the parties entered into the proffer agreement.
“In reviewing a district court’s ruling on a motion to suppress,
we review factual findings for clear error, and its legal
conclusions de novo.” United States v. Cain, 524 F.3d 477, 481
(4th Cir. 2008) (citation omitted); see also United States v.
Caro, 597 F.3d 608, 616 (4th Cir. 2010) (reviewing an alleged
Brady v. Maryland, 373 U.S. 83 (1963) violation de novo). When
the district court has denied a defendant’s suppression motion,
we construe the evidence in the light most favorable to the
government. United States v. Grossman, 400 F.3d 212, 216 (4th
Cir. 2005).
“In Brady, the Supreme Court announced that the Due
Process Clause requires the government to disclose ‘evidence
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favorable to an accused upon request . . . where the evidence is
material either to guilt or to punishment.’” Caro, 597 F.3d at619 (citing Brady, 373 U.S. at 87). In order to establish a
Brady violation, Collins must demonstrate that the evidence at
issue is favorable to him, either because it is exculpatory or
impeaching; the evidence was suppressed by the Government; and
that he was prejudiced by that suppression. Strickler v.
Greene, 527 U.S. 263, 281-82 (1999). Favorable evidence is
material if the defendant can demonstrate that there is a
reasonable probability that, had the evidence been disclosed,
the outcome of the proceeding would have been different. Caro,
597 F.3d at 619. We have thoroughly reviewed the record and
conclude that the district court did not err in concluding that
the challenged evidence was not favorable to Collins as it was
not exculpatory or impeaching.
Collins next argues that there was insufficient
evidence to support the verdict. We review a district court’s
decision to deny a Fed. R. Crim. P. 29 motion for a judgment of
acquittal de novo. United States v. Smith, 451 F.3d 209, 216
(4th Cir. 2006). A defendant challenging the sufficiency of the
evidence faces a heavy burden. United States v. Beidler, 110
F.3d 1064, 1067 (4th Cir. 1997). The verdict of a jury must be
sustained “if, viewing the evidence in the light most favorable
to the prosecution, the verdict is supported by ‘substantial
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evidence.’” Smith, 451 F.3d at 216 (citations omitted).
Substantial evidence 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.”
Id. (internal quotation marks and citation omitted).
Furthermore, “[t]he jury, not the reviewing court, weighs the
credibility of the evidence and resolves any conflicts in the
evidence presented.” Beidler, 110 F.3d at 1067 (internal
quotation marks and citation omitted). “Reversal for
insufficient evidence is reserved for the rare case where the
prosecution’s failure is clear.” Id. (internal quotation marks
and citation omitted).
In order to prove that Collins conspired to possess
with intent to distribute and distribute marijuana and cocaine,
the Government needed to show (1) an agreement between two or
more persons, (2) that Collins knew of the agreement, and
(3) that Collins knowingly and voluntarily joined the
conspiracy. United States v. Burgos, 94 F.3d 849, 857 (4th Cir.
1996) (en banc). However, the Government was not required to
make this showing through direct evidence. In fact, “a
conspiracy may be proved wholly by circumstantial evidence,” and
therefore may be inferred from the circumstances presented at
trial. Id. at 858. Our review of the record leads us to
conclude that there was substantial evidence to support the
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jury’s finding of guilt. We reject Collins’ invitation that we
substitute our weighing of the evidence or assessment of the
credibility of the witnesses for the determinations made by the
jury.
Finally, Collins argues that the district court erred
in calculating the advisory Guidelines range by incorrectly
calculating the amount of drugs attributable to Collins and
applying an enhancement for possession of a firearm. In
reviewing the district court’s calculations under the
Guidelines, we “review the district court’s legal conclusions de
novo and its factual findings for clear error.” United
States v. Manigan, 592 F.3d 621, 626 (4th Cir. 2010) (internal
quotation marks and citation omitted). We will “find clear
error only if, on the entire evidence, we are left with the
definite and firm conviction that a mistake has been committed.”
Id. at 631 (internal quotation marks and citation omitted).
At sentencing, the Government need only establish the
amount of drugs involved in an offense by a preponderance of the
evidence. United States v. Brooks, 524 F.3d 549, 560 n.20, 562
(4th Cir. 2008); United States v. Cook, 76 F.3d 596, 604 (4th
Cir. 1996). “[W]here there is no drug seizure or the amount of
drugs seized does not reflect the scale of the offense, the
court shall approximate the quantity of the controlled
substance.” United States v. D’Anjou, 16 F.3d 604, 614 (4th
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Cir. 1994). In addition, a district court may consider
acquitted conduct in applying the Guidelines when that conduct
has been proven by a preponderance of the evidence. See
Watts v. United States, 519 U.S. 148, 156 (1997). We will
afford the district court “broad discretion as to what
information to credit in making its calculations.” Cook, 76
F.3d at 604 (internal quotations and citation omitted).
Moreover, under the Guidelines, a district court shall
apply a two-level enhancement in offense level if a dangerous
weapon was possessed. See U.S. Sentencing Guidelines Manual
(“USSG”) § 2D1.1(b). The commentary to that section provides
that the enhancement should be “applied if the weapon was
present, unless it is clearly improbable that the weapon was
connected with the offense.” USSG § 2D1.1(b) cmt. n.3(A).
After reviewing the record and carefully considering the
relevant legal authorities, we conclude that the district court
did not err in calculating the advisory Guidelines range.
Accordingly, we affirm the judgment of the district
court. 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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