United States v. Wheeler ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4426
ERIC WHEELER, a/k/a E,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4475
CEDRIC HUSKEY,
Defendant-Appellant.
Appeals from the United States District Court
for the Western District of North Carolina, at Shelby.
Lacy H. Thornburg, District Judge.
(CR-96-53)
Submitted: June 30, 1998
Decided: July 22, 1998
Before HAMILTON and WILLIAMS, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Charles R. Brewer, Asheville, North Carolina; William E. Loose,
Asheville, North Carolina, for Appellants. Mark T. Calloway, United
States Attorney, Deborah A. Ausburn, Assistant United States Attor-
ney, Asheville, North Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Eric Wheeler and Cedric Huskey appeal their jury convictions on
drug conspiracy charges in violation of 21 U.S.C.A.§ 846 (West
Supp. 1998) and Wheeler also appeals his conviction for use of a fire-
arm during a drug offense in violation of 18 U.S.C.A. § 924(c)(1)
(West Supp. 1998). We affirm.
Both Appellants first contend that their Sixth Amendment right to
a jury venire that is a fair cross-section of the community was vio-
lated. We conclude that Appellants failed to establish a prima facie
Sixth Amendment violation because they failed to show "systematic
exclusion" of African Americans from the jury venire. See Truesdale
v. Moore, 142 F.3d 749 (4th Cir. 1998).
Appellants do not dispute that the venire was chosen randomly
from voter registration roles. (Appellants' Reply Br. at 3). The use of
voter registration roles has been consistently upheld unless the role in
question was compiled in a discriminatory manner. See Truesdale,
142 F.3d at 755. Defendants argue that they have shown systemic
exclusion in three ways. First, they rely upon "discrepancy in the
minority population versus the minorities that are registered to vote
in" the district court divisions. (Appellants' Reply Br. at 4). Next,
they argue that in addition to this case, in three other cases the jury
2
selection process resulted in venires which had no African American
members. (Appellant's Reply Br. at 4-5). Finally, they note that the
district court did not allow defense counsel to explore the distances
that the potential jurors lived from the Shelby Division of the Western
District of North Carolina. Appellants contend that they should have
been tried in the Shelby Division rather than the Statesville Division.
These arguments fail to show that Appellants established the system-
atic exclusion element. They may not substitute evidence of substan-
tial underrepresentation for evidence of systematic exclusion. See
Truesdale, 142 F.3d at 755. Therefore, we conclude that the district
court did not err in denying the motion for a mistrial on the Sixth
Amendment claim.
Appellants next present several sentencing guidelines claims.
Huskey claims that the district court erred in finding that he was a
career criminal under U.S. Sentencing Guidelines Manual § 4B1.1
(1995). He contends that the district court erred in treating two state
misdemeanor convictions as "crimes of violence" under the Guide-
lines. Because the offenses were state two-year misdemeanors at the
time of Huskey's conviction, however, they were properly treated as
crimes of violence under § 4B1.1. See United States v. Johnson, 114
F.3d 435, 445 (4th Cir.), cert. denied, 118 S. Ct. 257 (1997).
Huskey's next argument that the court erred in determining the
amount of cocaine base for which he should be accountable assumes
that the trial court erred in finding that he was a career offender.
Because we find no error in the career offender determination, we
decline to address this argument.
The district court found that Wheeler was a career offender pursu-
ant to U.S.S.G. § 4B1.1 and that he was subject to a mandatory mini-
mum term of imprisonment of life under 21 U.S.C.A.§ 841(b)(1)(A)
(West Supp. 1998) and 18 U.S.C. § 851 (West 1981). Wheeler argues
that the court erred in sentencing him to the mandatory minimum
because his New Jersey conviction for possession of drug parapherna-
lia with the intent to deliver is not a "felony drug offense" under those
statutes. A "felony drug offense" is an offense "punishable by impris-
onment for more than one year under any law . . . of a State . . . that
prohibits or restricts conduct relating to narcotic drugs, marihuana, or
depressant or stimulant substances." 21 U.S.C.A.§ 802(44) (West
Supp. 1998). New Jersey law makes one convicted of possession of
3
drug paraphernalia with the intent to distribute subject to imprison-
ment for a term not to exceed eighteen months. See N.J. Stat. Ann.
§§ 2C:36-3 & 2C:43-6 (West 1997). Thus, we find no error in treating
this conviction as a "felony drug offense."
Wheeler next argues that the Government's notice that he was sub-
ject to enhancement of his sentence due to his prior"felony drug
offenses" was defective because the Information filed by the Govern-
ment recited the offense as "dangerous drugs" rather than possession
of drug paraphernalia. The Information listed the correct date of con-
viction and the correct court, however. We conclude that the Informa-
tion conveyed enough correct details of Wheeler's prior conviction to
give him reasonable notice of the government's intention and to
enable him to challenge the conviction in the district court. See United
States v. Jackson, 121 F.3d 316, 319-21 (7th Cir. 1997). Thus, this
claim merits no relief.
Wheeler's final Guidelines claim is that the district court erred in
finding that he was a career offender because two prior convictions
should have been treated as "related" and thus as a single conviction
under U.S.S.G. § 4A1.2(a)(2). He was arrested on the first on Febru-
ary 8, 1989, and the second on April 3, 1989. "Prior sentences are not
considered related if they were for offenses that were separated by an
intervening arrest." U.S.S.G. § 4A1.2, comment. (n.3). The PSR's
description of the offenses shows that there was an intervening arrest
between these two offenses, and this disqualifies them from being
considered related offenses. We find no merit in Wheeler's claim that
the district court failed to give him the opportunity to argue against
the propriety of relying on the convictions set out in the Information.
See J.A. at 958-62. Accordingly, we reject Wheeler's claim that the
district court erred in finding that he was a career offender.
Appellants next argue that the district court erred by not using a
conversion ratio for cocaine powder to cocaine base. We conclude
that this claim lacks merit because witnesses testified as to the
amounts of cocaine base actually obtained by converting the powder
cocaine to cocaine base. See J.A. at 498, 502.
Wheeler next contends that the district court erred by failing to
make specific findings on his objections to his PSR. Fed. R. Crim. P.
4
32 provides that "[e]xcept for any unresolved objection under subdivi-
sion (b)(6)(B), the court may, at the hearing, accept the presentence
report as its findings of fact." The district court heard argument on
each objection and made a finding after each objection. The court's
judgment also recites that it "adopts the factual findings and guideline
application in the presentence report." (J.A. 1094). "A mere objection
to the finding in the presentence report is not sufficient . . . . Without
an affirmative showing the information is inaccurate, the court is `free
to adopt the findings of the [presentence report] without more specific
inquiry or explanation.'" We conclude that the district court satisfied
the requirements of Fed. R. Crim. P. 32.
Wheeler also argues that there was insufficient evidence to support
his conviction under 18 U.S.C.A. § 924(c)(1) (West Supp. 1998).
Count eleven charged him with using or carrying a firearm in relation
to a drug trafficking offense. There was testimony that he often car-
ried a firearm on his person when he received drugs in the summer
of 1995. See J.A. at 259-61. We find that this evidence easily meets
the sufficiency standard on this count.
Finally, Defendants contend that the district court erred in denying
their motions for mistrial after a prospective juror made a comment
during voir dire. The United States Attorney was asking the jurors
whether they objected to plea bargaining. This was important for the
Government because some of the Government's witnesses had made
plea agreements and were cooperating with the Government in hopes
of reducing their sentences. The juror responded by saying that he
thought if one was "dealing with a drug such as this where you're
kind of peddling death and destruction, it doesn't seem like plea bar-
gaining would be a pleasant thing." J.A. 47-48. Upon defense counsel
asking that the court instruct the jury to disregard the juror's response,
the court said, "you take your evidence from the witness stand . . . and
base your verdicts on that, not on anything you may have seen, read
or heard . . . inside the courtroom as to . . . personal opinion." J.A.
at 49. We find no abuse of discretion in the court denying the Defen-
dants' motion for mistrial on this basis. See United States v. Dorsey,
45 F.3d 809, 817 (4th Cir. 1995) (setting standard of review).
Finding no merit to any of Appellants' claims on appeal, we affirm
the judgment of the district court. Appellant Huskey has also moved
5
to file a pro se supplemental brief. We grant the motion but conclude
that the jurisdictional claim advanced in that brief is frivolous. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
AFFIRMED
6