United States v. Alonzo , 26 F. App'x 159 ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4227
KENNI RAYMON ALONZO,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4229
CHRISTOPHER LEON MOORE,
Defendant-Appellant.

Appeals from the United States District Court
for the Southern District of West Virginia, at Charleston.
John T. Copenhaver, Jr., District Judge.
(CR-00-130)
Submitted: October 31, 2001
Decided: December 17, 2001
Before NIEMEYER, MICHAEL, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Carl J. Dascoli, Jr., MICHAEL R. CLINE LAW OFFICES, Charles-
ton, West Virginia, for Appellant Alonzo; Gregory M. Courtright,
2 UNITED STATES v. ALONZO
COLLINS & COURTRIGHT, Charleston, West Virginia, for Appel-
lant Moore. Stephen M. Horn, Acting United States Attorney, Samuel
D. Marsh, Assistant United States Attorney, Charleston, West Vir-
ginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Kenni Raymon Alonzo and Christopher Leon Moore were con-
victed by a jury of conspiracy to distribute fifty grams or more of
cocaine base (crack), in violation of 21 U.S.C. § 846 (1994), and dis-
tribution of crack. 21 U.S.C.A. § 841(a) (West 1999). Alonzo was
also convicted of using or carrying a firearm during and in relation
to a drug trafficking crime. 18 U.S.C.A. § 924(c) (West 2000). Both
received sentences of 360 months imprisonment for the conspiracy.
Alonzo was sentenced to a consecutive five-year term for the § 924(c)
conviction. Alonzo and Moore appeal their convictions and sentences.
Appellants first claim that the district court erred in reviewing less
than the entirety of the record of a grand jury investigation into
improprieties at the state police laboratory where the government’s
drug evidence was initially analyzed. They argue that they were thus
denied the opportunity to discover information that might have led
them to exculpatory or impeaching material that would have resulted
in the dismissal of the indictment. The Due Process Clause requires
the government to disclose to the defense prior to trial any exculpa-
tory or impeaching evidence in its possession. Giglio v. United States,
405 U.S. 150, 153-55 (1972) (evidence affecting the credibility of
prosecution witnesses); Brady v. Maryland, 373 U.S. 83, 86-88
(1963) (exculpatory evidence). Due process is violated if the evidence
in question: (1) is favorable to the defendant, because it is either
exculpatory or impeaching; (2) was suppressed by the government;
UNITED STATES v. ALONZO 3
and (3) is material. Strickler v. Greene, 527 U.S. 263, 281-82 (1999).
Undisclosed evidence is material when its cumulative effect is such
that "there is a reasonable probability that, had the evidence been dis-
closed to the defense, the result of the proceeding would have been
different." Kyles v. Whitley, 514 U.S. 419, 433-34 (1995) (quoting
United States v. Bagley, 473 U.S. 667, 682 (1985)). A reasonable
probability is one sufficient to undermine confidence in the outcome.
Kyles, 514 U.S. at 434.
Appellants do not identify any exculpatory or impeaching material
that was relevant to their prosecution which the government failed to
disclose. They contend that such material might exist. Our review of
the record discloses that the potential effect of improprieties at the
state laboratory was explored in full and all information relevant to
Appellants’ cases was provided to them. The government’s drug evi-
dence was retested at a Drug Enforcement Administration laboratory
and at an independent laboratory chosen by defense counsel. Appel-
lants’ speculative claim that the undisclosed portions of the grand jury
record might have revealed problems with the chain of custody is not
supported by the record. At trial, although the government produced
no testimony by the state laboratory employees who were under
investigation, it introduced other evidence that established the chain
of custody for its drug evidence. See United States v. Howard-Arias,
679 F.2d 363, 366 (4th Cir. 1982) (missing link in chain of custody
not bar to admission of evidence if "there is sufficient proof that evi-
dence is what it purports to be and has not been altered in any mate-
rial aspect").
Apart from the constitutional requirements of Brady and Giglio,
pretrial discovery of grand jury proceedings in federal criminal trials
is governed by Rule 16 of the Federal Rules of Criminal Procedure.
United States v. Nobles, 422 U.S. 225, 235 (1975). Grand jury testi-
mony may be disclosed to a defendant "upon a showing that grounds
may exist for a motion to dismiss the indictment because of matters
occurring before the grand jury." Fed. R. Crim. P. 6(e)(3)(C)(ii).
Moore and Alonzo made no such showing. We find that the district
court’s denial of their request for a review of the entire grand jury
investigation was not an abuse of discretion. United States v. Fowler,
932 F.2d 306, 311 (4th Cir. 1991) (stating standard).
4 UNITED STATES v. ALONZO
Appellants’ remaining claims are also without merit. Alonzo and
Moore were subject to a statutory sentencing range of ten years to life
based on their convictions under Count One of conspiracy to distrib-
ute fifty or more grams of crack. The government proved that quantity
of crack beyond a reasonable doubt, thus satisfying the rule set out in
Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) (holding that, other
than the fact of a prior conviction, any fact that increases the penalty
for a crime beyond the prescribed statutory maximum must be sub-
mitted to a jury and proved beyond a reasonable doubt). The district
court did not err in determining the quantity of crack that was attribut-
able to them as relevant conduct in determining their sentencing
guideline range within the statutory range pursuant to U.S. Sentencing
Guidelines Manual § 2D1.1 (2000). See United States v. Promise, 255
F.3d 150, 156 n.5 (4th Cir. 2001), petition for cert. filed, Sept. 20,
2001 (No. 01-6398); United States v. Kinter, 235 F.3d 192, 201 (4th
Cir. 2000), cert. denied, 121 S. Ct. 1393 (2001). Appellants cannot
show that the district court clearly erred in determining the amount of
crack attributable to them because, even though the district court
accepted the recommendations of the probation officer concerning the
total quantity of crack attributable to them, the court also correctly
found that their base offense levels would be the same if the calcula-
tion were based only on the minimum quantity of fifty grams of
crack. Evidence produced at trial and at sentencing supported
Moore’s weapon enhancement, USSG § 2D1.1(b)(1), Alonzo’s four-
level adjustment for being a leader or organizer of the conspiracy, and
Moore’s three-level adjustment for being a manager or supervisor.
USSG § 3B1.1(a), (b).
We therefore affirm the convictions and sentences. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED