United States v. Corey Stukes ( 2019 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-4434
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
COREY JASON STUKES,
Defendant - Appellant.
Appeal from the United States District Court for the District of South Carolina, at
Columbia. Terry L. Wooten, Senior District Judge. (3:17-cr-00030-TLW-9)
Submitted: April 30, 2019 Decided: May 29, 2019
Before GREGORY, Chief Judge, KEENAN, Circuit Judge, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Jonathan M. Milling, MILLING LAW FIRM, LLC, Columbia, South Carolina, for
Appellant. Sherri A. Lydon, United States Attorney, Benjamin N. Garner, Assistant
United States Attorney, Kathleen M. Stoughton, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Corey Jason Stukes pleaded guilty to conspiracy to possess with intent to
distribute and to distribute 500 grams or more of cocaine and 28 grams or more of
cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), 846 (2012). The district
court sentenced Stukes to 100 months’ imprisonment and 4 years’ supervised release. On
appeal, Stukes asserts that the district court erred in applying two two-level
enhancements, one for possession of a dangerous weapon and the other for maintaining a
drug premises, and in relying on hearsay testimony to determine the applicability of the
enhancements. We affirm.
At the sentencing hearing, the district court heard testimony from Federal Bureau
of Investigation Special Agent Kevin Conroy relating information obtained from three
informants concerning Stukes’ activities. One informant said that Stukes always carried
a gun; another stated that he hung out with Stukes at a “trap house” in south Sumter,
South Carolina, “run by Stukes,” who had a constant stream of customers to purchase
drugs there; and the third informant reported that Stukes had a gun in his waistband each
time he purchased drugs from Stukes at a house in south Sumter. The Government
offered no evidence that Stukes had a legal possessory interest in the trap house or that
Stukes resided there.
We begin by addressing Stukes’ argument that the district court procedurally erred
in relying exclusively on Conroy’s hearsay testimony, which Stukes claims was
uncorroborated. We review a criminal sentence for reasonableness “under a deferential
abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 41 (2007). We must
2
“ensure that the district court committed no significant procedural error, such as failing to
calculate (or improperly calculating) the [Sentencing] Guidelines range, . . . selecting a
sentence based on clearly erroneous facts, or failing to adequately explain the chosen
sentence.” Id. at 51.
A district court “may consider any relevant information before it, including
uncorroborated hearsay, provided that the information has sufficient indicia of reliability
to support its accuracy.” United States v. Mondragon, 860 F.3d 227, 233 (4th Cir. 2017)
(internal quotation marks omitted); see U.S. Sentencing Guidelines Manual § 6A1.3(a)
(2016). The defendant bears “an affirmative duty to show that the information in the
presentence report is unreliable, and articulate the reasons why the facts contained therein
are untrue or inaccurate.” Mondragon, 860 F.3d at 233 (internal quotation marks
omitted).
Stukes claims that the information supplied by the informants was uncorroborated
and therefore unreliable. First, hearsay is admissible at sentencing, and the fact that it is
uncorroborated does not, by itself, render it unreliable. Rather, a defendant must show
that the disputed information is unreliable, and why. United States v. Terry, 916 F.2d
157, 162-63 (4th Cir. 1990). Second, the informants’ claims actually were corroborated.
As to the firearm enhancement, two informants stated that Stukes possessed a firearm
during drug sales; one reported that Stukes always carried a gun, and the other recounted
that Stukes had a gun in his waistband each time the informant purchased drugs from
Stukes. Similarly, two informants stated that Stukes sold drugs from a house in south
Sumter, South Carolina. And third, Conroy testified that two of the informants had
3
proven extremely reliable by providing a significant amount of information that was
corroborated through further investigation and led to arrests and indictments of additional
coconspirators. Thus, we conclude that Conroy’s hearsay testimony bore sufficient
indicia of reliability to permit the district court to rely on it in determining the
applicability of the disputed sentencing enhancements.
In reviewing application of these enhancements, we review the district court’s
legal conclusions de novo and its factual conclusions for clear error. United States v.
Shephard, 892 F.3d 666, 670 (4th Cir. 2018). The Guidelines enumerate several specific
enhancements for drug trafficking offenses. United States v. Bolton, 858 F.3d 905, 912
(4th Cir. 2017). Here, the district court applied two such enhancements. First, the court
added two offense levels under USSG § 2D1.1(b)(1), which reads: “If a dangerous
weapon (including a firearm) was possessed, increase by 2 levels.” The Guidelines’
commentary states in part, “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 cmt. n.11(A). Noting the reliability of Agent Conroy’s testimony, we
conclude that the district court did not clearly err in determining, by a preponderance of
the evidence, that Stukes possessed a firearm during at least some of his drug
transactions.
The district court also applied USSG § 2D1.1(b)(12), which reads: “If the
defendant maintained a premises for the purpose of manufacturing or distributing a
controlled substance, increase by 2 levels.” The Guidelines’ commentary states: “Among
the factors the court should consider . . . are (A) whether the defendant held a possessory
4
interest in (e.g., owned or rented) the premises and (B) the extent to which the defendant
controlled access to, or activities at, the premises.” USSG § 2D1.1 cmt. n.17.
Again, in light of the reliability of the informants’ information as relayed by
Conroy’s testimony, we conclude that the district court did not clearly err in determining,
by a preponderance of the evidence, that Stukes maintained a house for the purpose of
selling drugs. While other indicia of control are absent, such as a documented possessory
interest in the house, Conroy’s testimony that Stukes ran a trap house provided sufficient
evidence that Stukes exercised at least some power to control it.
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 this court and argument would not aid the decisional process.
AFFIRMED
5