United States v. Anthony Brame , 448 F. App'x 364 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4141
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTHONY LANGUAN BRAME, a/k/a Ant,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (5:10-cr-00246-F-1)
Submitted: September 22, 2011 Decided: October 3, 2011
Before MOTZ and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Jeffrey W. Gillette, GILLETTE LAW FIRM, PLLC, Raleigh, North
Carolina, for Appellant. George E. B. Holding, United States
Attorney, Jennifer P. May-Parker, Thomas B. Murphy, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Anthony Languan Brame pled guilty, without the benefit
of a written plea agreement, to conspiracy to distribute and to
possess with intent to distribute 100 grams or more of heroin
and 500 grams or more of cocaine, in violation of 21 U.S.C.
§ 846 (2006), and possession with intent to distribute a
quantity of heroin, in violation of 21 U.S.C. § 841(a)(1)
(2006). The district court sentenced Brame to ninety-six
months’ imprisonment. On appeal, Brame raises three challenges
to the procedural reasonableness of his sentence. For the
reasons that follow, we affirm.
We review the sentence imposed by the district court,
“whether inside, just outside, or significantly outside the
Guidelines range,” for an abuse of discretion. Gall v. United
States, 552 U.S. 38, 41 (2007). This review entails appellate
consideration of both the procedural and substantive
reasonableness of the sentence. * Id. at 51. In determining
whether a sentence is procedurally reasonable, this court first
assesses whether the district court properly calculated the
defendant’s Guidelines range. Id. The court then considers
whether the district court considered the Guidelines as
*
Because Brame does not challenge the substantive
reasonableness of his sentence, we have not considered that
issue.
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mandatory, failed to consider the 18 U.S.C. § 3553(a) (2006)
factors and any arguments presented by the parties, selected a
sentence based on “clearly erroneous facts,” or failed to
explain sufficiently the selected sentence. Id. at 50-51; see
United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007).
I.
Brame first maintains the district court committed
procedural error by failing to expressly rule on the objections
he lodged to the presentence report (“PSR”), as required by Fed.
R. Crim. P. 32(i)(3)(B). Because Brame did not raise an
objection based on Rule 32 at sentencing, our review is for
plain error. See Puckett v. United States, 556 U.S. 129, ___,
129 S. Ct. 1423, 1428-29 (2009); see also United States v. Cook,
550 F.3d 1292, 1297-98 (10th Cir. 2008) (holding that plain-
error review applies where a defendant fails to make a Rule
32(i)(3)(B) objection in the district court). To prevail under
this standard, Brame must establish that a clear or obvious
error by the district court affected his substantial rights.
Puckett, 129 S. Ct. at 1429. An error affects a defendant’s
substantial rights “if the error affect[s] the outcome of the
district court proceedings.” United States v. Knight, 606 F.3d
171, 178 (4th Cir. 2010) (internal quotation marks omitted).
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Thus, Brame “must show that he would have received a lower
sentence had the error not occurred.” Id.Brame objected to several portions of the PSR that
detailed the offense conduct. First, Brame objected to
paragraph seven, which attributed thirty-two grams of heroin to
him based on a 2005 seizure from a residence in Henderson, North
Carolina, arguing there was insufficient proof that the seized
narcotics were his. Brame next objected to paragraph eleven,
which detailed information provided by another inmate, Stephon
Bullock, regarding Brame’s purchases of cocaine from Bullock and
another individual, claiming that he was not involved in these
transactions.
Brame also objected to paragraphs eight and nine in
which the probation officer converted to heroin currency seized
from Brame’s person and the vehicle in which he was traveling.
More specifically, in paragraph eight, the probation officer
detailed a controlled buy that resulted in Brame’s arrest. At
that time, Brame was found in possession of $2,380 in cash,
which was converted to 26.99 grams of heroin. Although Brame
argued this conversion was unwarranted because the money could
have been obtained lawfully, he did not present any evidence to
substantiate this contention.
With regard to paragraph nine, the PSR recounted that,
in November 2009, Brame and a co-conspirator were stopped by the
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police outside of Baltimore, Maryland (“Baltimore traffic
stop”). The police seized the vehicle in which Brame was a
passenger and, upon searching it and its contents, found 77.95
grams of heroin and $12,750 in U.S. currency. The probation
officer converted this currency to 144.59 grams of heroin.
Brame maintained only a portion of the heroin and the currency
was attributable to him.
After hearing argument on Brame’s objections, the
district court found the total adjusted offense level was
twenty-seven and that Brame had a category III criminal history,
which was consistent with the PSR. The district court denied
Brame’s objections, ruled the findings in the PSR credible and
reliable, and adopted the PSR.
At sentencing, a district court must either rule on
“any disputed portion of the presentence report or other
controverted matter[,] . . . or determine that a ruling is
unnecessary either because the matter will not affect
sentencing, or because the court will not consider the matter in
sentencing.” Fed. R. Crim. P. 32(i)(3)(B). Rule 32 “clearly
requires the district court to make a finding with respect to
each objection a defendant raises to facts contained in a
presentence report before it may rely on the disputed fact in
sentencing.” United States v. Morgan, 942 F.2d 243, 245 (4th
Cir. 1991). This court has opined, however, that a district
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court “need not articulate [findings] as to disputed factual
allegations with minute specificity.” United States v. Bolden,
325 F.3d 471, 497 (4th Cir. 2003) (alteration in original;
internal quotation marks omitted). The sentencing court “may
simply adopt the findings contained in a PSR,” so long as it
clarifies “which disputed issues were resolved by its adoption.”
Id. (internal quotation marks omitted); see also United States
v. Walker, 29 F.3d 908, 912-13 (4th Cir. 1994) (holding district
court satisfied Rule 32 in expressly overruling defendant’s
objections to the PSR and imposing a sentence in accordance with
the report’s recommendation).
We discern no error in the district court’s treatment
of Brame’s objections. Brame’s objections to paragraphs seven
and eleven amounted to nothing more than general denials of the
conduct alleged therein. Because Brame failed to offer any
evidence to demonstrate that the information was unreliable or
inaccurate, the district court was “free to adopt the findings
of the presentence report without more specific inquiry or
explanation.” United States v. Terry, 916 F.2d 157, 162 (4th
Cir. 1990) (internal quotation marks and alteration omitted) (“A
mere objection to the finding in the presentence report is not
sufficient. The defendant has an affirmative duty to make a
showing that the information in the presentence report is
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unreliable, and articulate the reasons why the facts contained
therein are untrue or inaccurate.”).
Nor was the district court obligated to more
thoroughly explain why it rejected Brame’s objections to
paragraphs eight and nine. The district court’s overruling of
Brame’s objections, coupled with its express adoption of the
PSR, satisfied the court’s obligation to address those
objections. See Walker, 29 F.3d at 912 (“It is self-evident
that, in expressly overruling [defendant’s] objections to the
PSR, the court was in fact adopting the controverted PSR
findings.”). Accordingly, we reject this assignment of error.
II.
Brame next argues the district court erred in
converting into heroin the cash seized from the vehicle during
the Baltimore traffic stop because the court did not explicitly
find “that these funds in general, and the cash found in the
glove compartment specifically, were the fruit of drug
transactions.” (Appellant’s Br. at 11). We disagree.
We review the district court’s “drug quantity finding
for clear error.” United States v. Kellam, 568 F.3d 125, 147
(4th Cir.), cert. denied, 130 S. Ct. 657 (2009); see United
States v. Kiulin, 360 F.3d 456, 461 (4th Cir. 2004) (district
court did not clearly err in calculating drug quantity for
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possession with intent to distribute ecstasy by converting cash
to its drug equivalent); United States v. Hicks, 948 F.2d 877,
881, 883 (4th Cir. 1991) (district court did not clearly err in
calculating drug quantity for possession with intent to
distribute cocaine by converting $279,550 in seized cash to
cocaine). This deferential standard of review requires reversal
only if this court, upon reviewing the record as a whole, “is
left with the definite and firm conviction that a mistake has
been committed.” Easley v. Cromartie, 532 U.S. 234, 242 (2001)
(internal quotation marks omitted).
It is proper for the district court to convert seized
currency into drug amounts for the purpose of setting an offense
level when that cash is part of the same course of conduct,
either because it is the proceeds of drug sales or would be used
to purchase more drugs in the future. Hicks, 948 F.2d at 881-
83; see U.S. Sentencing Guidelines Manual (“USSG”) § 2D1.1, cmt.
n.12 (2009). “A district court may properly convert cash
amounts linked credibly to the defendant’s purchase or sale of
narcotics.” United States v. Sampson, 140 F.3d 585, 592 (4th
Cir. 1998). Thus, “it is the government’s burden to prove by a
preponderance of the evidence the connection between the money
seized and the drug-related activity.” United States v. Mayes,
80 F. App’x 893, 894 (4th Cir. 2003) (unpublished) (citing
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United States v. Gonzalez-Sanchez, 953 F.2d 1184, 1187 (9th Cir.
1992)).
Applying these standards, we conclude that the
district court did not clearly err in converting the seized
currency to a quantity of heroin. Following the Baltimore
traffic stop, the police seized 77.95 grams of heroin from a
backpack located within the vehicle in which Brame was a
passenger. An undisclosed amount of currency was also found in
the backpack, which Brame asserted belonged to his co-
conspirator. Another large amount of cash was located in the
vehicle’s glove compartment, which Brame conceded belonged to
him and his co-conspirator. In total, $12,750 was seized.
The record thus establishes that Brame possessed a
substantial quantity of heroin contemporaneous to his possession
of $12,750. This is enough to satisfy the Government’s burden
to link the currency with Brame’s narcotics activities. See
United States v. Thomas, 913 F.2d 1111, 1117-18 (4th Cir. 1990)
(holding that possession of large amount of cash may be
circumstantial evidence of drug trafficking). That Brame did
not admit to having exclusive ownership of or dominion and
control over the glove compartment or backpack is of no moment.
See United States v. Herder, 594 F.3d 352, 358 (4th Cir.) (“A
person may have constructive possession of contraband if he has
ownership, dominion, or control over the contraband or the
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premises or vehicle in which the contraband was concealed.”),
cert. denied, 130 S. Ct. 3440 (2010). Under these
circumstances, where a large sum of currency was found in the
same location as a large quantity of narcotics, the Government
proved by a preponderance of the evidence a connection between
the currency and the drug activity, and thus the district court
did not err by converting the seized money into its drug
equivalency for sentencing purposes.
III.
In his final appellate argument, Brame maintains the
district court should not have admitted Bullock’s statements
regarding Brame’s drug activities through the testimony of
Special Agent Lynn Gay of the North Carolina Bureau of
Investigation. The drug quantities reported by Bullock
contributed to the determination of the drug quantity
attributable to Brame. Special Agent Gay testified to these
statements at sentencing, and Brame’s attorney cross-examined
her regarding the reliability of Bullock’s information.
We conclude the district court properly allowed and
relied upon Gay’s testimony regarding Bullock’s statements as to
the drug transactions in which Brame was involved. It is well-
established that “there is no bar to the use of hearsay at
sentencing[,] . . . [and a] trial court may properly consider
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uncorroborated hearsay evidence that the defendant has had an
opportunity to rebut or explain.” United States v. Alvarado
Perez, 609 F.3d 609, 618 n.4 (4th Cir. 2010) (internal quotation
marks omitted); see also Fed. R. Evid. 1101(d)(3). Moreover,
the process employed by the district court in permitting Brame
to challenge the reliability of Bullock’s information satisfied
the due process requirements for purposes of sentencing. See
McMillan v. Pennsylvania, 477 U.S. 79, 91-92 (1986) (holding
that application of the preponderance standard at sentencing
generally satisfies due process); see also USSG § 6A1.3(a), p.s.
For these reasons, we affirm Brame’s sentence.
Further, we deny Brame’s motion for reconsideration of the
Clerk’s Office’s order denying his motion for an order to show
cause as to why his newly appointed appellate attorney, Sue
Genrich Berry, should not be disciplined, and deny the pending
motion for the substitution of counsel. 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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