United States v. Carroll ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4476
DUANE CARROLL,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v. No. 97-4545
DUANE CARROLL,
Defendant-Appellee.
Appeals from the United States District Court
for the District of Maryland, at Baltimore.
Herbert N. Maletz, Senior Judge, sitting by designation.
(CR-96-398-WMN)
Submitted: June 30, 1998
Decided: October 19, 1998
Before WIDENER and WILKINS, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
_________________________________________________________________
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
_________________________________________________________________
COUNSEL
Jane Norman, BOND, CONTE & NORMAN, Washington, D.C., for
Appellant. Lynne A. Battaglia, United States Attorney, Martin J.
Clarke, Assistant United States Attorney, Baltimore, Maryland, for
Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Duane Carroll was convicted by a jury of distributing heroin and
cocaine, both in violation of 21 U.S.C.A. § 841 (West 1981 & Supp.
1998). He appeals his convictions, contending that the evidence was
insufficient. The government appeals the district court's decision to
depart below the career offender guideline range, see U.S. Sentencing
Guidelines Manual § 4B1.1 (1995), and impose a sentence of thirty-
three months. We affirm the conviction but vacate the sentence and
remand for resentencing within the career offender guideline range.
The government produced evidence at trial that Carroll sold drugs
to Vance Williams, a confidential informant, on two occasions. Wil-
liams testified at trial that, on August 20, 1996, while assisting in an
investigation of Baltimore drug dealer Duane Holland, he approached
2630 Maisbury Court. He was under surveillance and was wearing a
recording device. Mike Tate was standing in front of the house and
Carroll was on the porch. Williams asked Tate where he could buy
some heroin. Tate called Carroll over. Carroll told Williams that Hol-
land was not around, but that he had heroin for sale. Williams left to
get authorization to purchase from Carroll, and returned later the
same day to buy twenty capsules containing 3.61 grams of heroin
from Carroll. On September 25, 1996, Williams returned to the same
house to make another purchase. Tate told him that Carroll was
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inside. Williams went to the door calling "Duane." Carroll let him in
and sold him twelve vials containing .61 grams of cocaine. Carroll
was convicted of both counts of distribution.
A verdict will be upheld on appeal "if there is substantial evidence,
taking the view most favorable to the Government, to support . . . the
conviction." United States v. Guay, 108 F.3d 545, 553 (4th Cir. 1997)
(quoting Glasser v. United States, 315 U.S. 60, 80 (1942)). Carroll
argues that the evidence was insufficient in his case because (1) the
police officer who drove him into the neighborhood where the two
controlled buys were made did not actually see Carroll hand the drugs
to the informant on either occasion, and (2) Williams, the informant,
was not a credible witness because he had a history of drug addiction
and criminal convictions.
It was not necessary for the police officer to see the drug transac-
tions in their entirety for the jury to find that they occurred. This court
considers circumstantial evidence as well as direct evidence and
allows the government the benefit of all reasonable inferences from
the facts proved to the facts sought to be established. See United
States v. Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982). The officer
was parked near the house during both sales and could see Williams
talking to Tate and Carroll. Williams testified that, on August 20, Car-
roll gave him the heroin in front of the house but that he immediately
followed Carroll around to the back of the house to complain that he
had not received the two extra capsules he had been promised. On
September 25, Carroll and Williams were inside the house when the
sale took place. On both occasions, the officer could hear Williams'
conversation. While the officer did not testify that he saw the actual
transfer of drugs on the first occasion (possibly because other custom-
ers were standing around Carroll), and was not able to see the second
transaction inside the house, his observations corroborated Williams'
testimony.
The jury was informed about Williams' history of drug use and
criminal convictions and his work as a paid informant when Williams
testified. The credibility of a witness' testimony is within the province
of the jury and is not reviewable on appeal. See United States v.
Murphy, 35 F.3d 143, 148 (4th Cir. 1994). Because the jury found
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Williams a credible witness, the evidence was more than sufficient to
support its finding that Carroll distributed heroin and cocaine.
Carroll was a career offender because he had two prior felony con-
victions for crimes of violence (battery and assault) and one prior fel-
ony conviction for a drug offense. However, the district court
determined that Carroll's career offender status overstated his crimi-
nal record and that a departure was warranted under USSG § 4A1.3,
p.s. The court identified six factors supporting a departure: (1) Carroll
was only twenty-two in 1986 when he committed the battery; (2) the
battery conviction occurred ten years before the instant offense; (3)
the assault conviction occurred five years after the battery and it was
a simple assault rather than an aggravated assault; (4) the instant
offense involved a small amount of drugs; (5) Carroll had a record of
employment; and (6) Carroll had been given probationary sentences
for the battery and the assault.
The district court's decision to depart is reviewed for abuse of dis-
cretion. See Koon v. United States, 518 U.S. 81, 96-100 (1996). Under
the test set out in Koon, if the factor identified by the district court
as supporting a departure is encouraged as a basis for departure, the
court must still determine whether it has been taken into account by
the applicable guideline. See United States v. Brock, 108 F.3d 31, 34
(4th Cir. 1997) (citing Koon). A criminal history category which sig-
nificantly underrepresents the defendant's past conduct is an encour-
aged factor for departure, see USSG § 4A1.3, and this court has held
that the district court may depart in a "truly unusual" case where
career offender status overstates the seriousness of the defendant's
criminal record. See United States v. Adkins, 937 F.2d 947, 952 (4th
Cir. 1991). However, none of the specific factors listed by the court
sets forth an adequate ground for departure.
Age is a discouraged factor for departure. See USSG § 5H1.1, p.s.
A discouraged factor may not support a departure unless it "`is pres-
ent to an exceptional degree or in some other way makes the case dif-
ferent from the ordinary case where the factor is present.'" Brock, 108
F.3d at 34-35 (4th Cir. 1997) (quoting Koon). That Carroll was
twenty-two when he committed the first predicate offense does not
make him an unusual career offender. A defendant's age in combina-
tion with other factors may be a basis for a departure below the career
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offender guideline range. See United States v. Bowser, 941 F.2d 1019,
1024-26 (10th Cir. 1991) (predicate offenses were committed six
years before instant offense when defendant was twenty years old,
were committed in two-month period, and received concurrent sen-
tences); United States v. Smith, 909 F.2d 1164, 1169-70 (8th Cir.
1990) (both predicate offenses committed within two-month period in
1983 when defendant was nineteen). By contrast, in this case, Carroll
was twenty-two when he committed the first predicate offense in
1986. The second was committed in 1992 when he was twenty-seven,
and a third was committed in 1993 when he was twenty-nine. On
these facts, age cannot support a departure even in combination with
the other factors identified by the district court.
It is not significant that the first predicate offense occurred nearly
ten years before the instant offense because Carroll continued to
engage in criminal conduct and violations of supervision during the
intervening years.
Neither is it significant that Carroll had no convictions between the
battery conviction and the assault conviction five years later because
his criminal activity escalated after the 1992 assault conviction. He
violated probation twice, and when he was paroled from the sentence
imposed for a third qualifying felony conviction, the 1993 drug
offense, Carroll violated parole by continuing to sell drugs.
The small amount of drugs involved in the instant offense is not a
valid ground for departure. See United States v. Tejeda, ___ F.3d ___,
1998 WL 286045, at *2 (2d Cir. June 1, 1998); see also United States
v. Brown, 23 F.3d 839, 842 (4th Cir. 1994) (quantity of drugs is a fac-
tor adequately accounted for in the guidelines).
A defendant's employment record is a discouraged factor, see
USSG § 5H1.5, p.s., and thus must in some way make the case an
exceptional one to support a departure. While Carroll worked at vari-
ous jobs between 1983 and 1996 when he was not incarcerated, he
reported no employment after early 1996, the year in which the
instant offense took place. Carroll's employment record is not excep-
tional and cannot support a departure from the career offender guide-
line range either standing alone or in combination with the other
factors listed here.
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The lenient treatment Carroll received in the state courts for his
prior offenses is not a ground for departure. See Tejeda, 1998 WL
286045, at *2; United States v. Phillips, 120 F.3d 227, 232 (11th Cir.
1997) (same).
Accordingly, we affirm Carroll's convictions, but vacate the sen-
tence and remand for resentencing within the career offender guide-
line range. 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 IN PART, VACATED IN PART, AND REMANDED
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