United States v. Ronnie Neely , 483 F. App'x 800 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4932
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RONNIE LEE NEELY,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., Chief District Judge. (3:10-cr-00086-RJC-DSC-1)
Submitted: May 30, 2012 Decided: June 12, 2012
Before MOTZ, DUNCAN, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Roderick M. Wright, Jr., WRIGHT LAW FIRM OF CHARLOTTE, PLLC,
Charlotte, North Carolina, for Appellant. Anne M. Tompkins,
United States Attorney, Richard Lee Edwards, Assistant United
States Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury convicted Ronnie Lee Neely of conspiracy to
distribute and/or possess with intent to distribute cocaine and
cocaine base (Count One), and attempt to possess with intent to
distribute cocaine (Count Two). The Government filed an
Information pursuant to 21 U.S.C.A. § 851 (West Supp. 2011),
notifying the district court that Neely had a prior felony drug
conviction and he was therefore subject to a mandatory minimum
sentence of twenty years under 21 U.S.C.A. § 841(b)(1)(B) (West
Supp. 2011). The district court sentenced Neely to the
mandatory minimum sentence of twenty years’ imprisonment. On
appeal, Neely argues the district court erred in enhancing his
sentence based on the prior conviction and that application of
the enhancement violated the Double Jeopardy Clause. Neely
further argues that the indictment itself charging him with a
drug conspiracy violated the Double Jeopardy Clause. Finding no
error, we affirm.
The gravamen of Neely’s appeal is that the use of his
prior conviction, a 2005 conviction in South Carolina for
trafficking crack cocaine, to subject him to an enhanced
sentence under 21 U.S.C.A. § 841(b)(1)(B) violated the Double
Jeopardy Clause. Neely was subject to a ten-year mandatory
sentence on Count One based on his conviction for conspiracy to
possess with intent to distribute fifty grams or more of crack
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cocaine and five kilograms or more cocaine. In light of the
Information the Government filed, Neely’s mandatory minimum
sentence became twenty years’ imprisonment on Count One. Neely
argues that the offense conduct underlying the prior conviction
occurred during the conspiracy period and therefore application
of the prior conviction to enhance his sentence amounts to
punishing him for the same conduct.
We have previously clarified that a conspiracy is a
distinct crime from the overt acts that support it, and
therefore, enhancing a sentence for conspiracy because of a
prior conviction, where one of the overt acts supporting the
conspiracy resulted in the prior conviction, presents no double
jeopardy concerns. United States v. Ambers, 85 F.3d 173, 177-78
(4th Cir. 1996) (observing the Supreme Court has consistently
rejected double jeopardy challenges to sentencing schemes that
enhance a defendant’s sentence because of a prior conviction).
Furthermore, we have held that when a defendant is convicted of
a drug conspiracy under 21 U.S.C.A. § 846 (West Supp. 2011),
prior felony drug convictions that fall within the conspiracy
period may be used to enhance the defendant’s sentence if the
conspiracy continued after his earlier convictions were final.
United States v. Smith, 451 F.3d 209, 224-25 (4th Cir. 2005); 21
U.S.C.A. § 841(b)(1)(A) (providing penalties for violations of
§ 846 and stating that prior felony drug conviction may be used
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to enhance sentence if it is final); see also United States v.
Howard, 115 F.3d 1151, 1158 (4th Cir. 1997) (“[B]ecause the
‘purpose of the mandatory minimum enhancement is to target
recidivism, it is more appropriate to focus on the degree of
criminal activity that occurs after the defendant’s conviction
for drug-related activity is final rather than when the
conspiracy began.’”) (citing United States v. Hansley, 54 F.3d
709, 717 (11th Cir. 1995)). Because we conclude the conspiracy
for which Neely was convicted continued well after his 2005
conviction became final, this conviction was properly considered
a prior conviction for purposes of enhancing his sentence, and
such consideration did not violate the Double Jeopardy Clause.
To the extent Neely argues his very indictment on the
conspiracy charge violated his rights against double jeopardy,
this court reviews a double jeopardy claim raised for the first
time on appeal for plain error. Brecht v. Abrahamson, 507 U.S.
619, 635 (1993); United States v. Sutton, 961 F.2d 476, 479 (4th
Cir. 1992). Clearly, Neely’s 2005 conviction for trafficking
crack cocaine on a single day in October 2004 is not the same
offense as the subject conspiracy which spanned eight years. In
any event, there is no double jeopardy violation when two
separate sovereigns—the United States and the state of North
Carolina—prosecute an individual for the same offense. See
Heath v. Alabama, 474 U.S. 82, 89 (1985) (applying separate
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sovereign exception); Rinaldi v. United States, 434 U.S. 22, 28
(1977) (“[T]he Constitution does not deny the State and Federal
Governments the power to prosecute for the same act.”). We
therefore conclude this argument is without merit.
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 material
before the court and argument will not aid the decisional
process.
AFFIRMED
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