United States v. Bell , 145 F. App'x 407 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4919
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
SAMUEL JOHNSON BELL, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Judge. (CR-03-202)
Submitted: September 22, 2004 Decided: August 16, 2005
Before LUTTIG, MICHAEL, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Wade A. Jacobson, Richmond, Virginia, for Appellant. Paul J.
McNulty, United States Attorney, Stephen W. Miller, Assistant
United States Attorney, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Samuel Johnson Bell, Jr., appeals his conviction and
sentence for distribution of cocaine base, possession with intent
to distribute cocaine base, and possession of marijuana in
violation of 21 U.S.C. §§ 841, 844 (2000).
Bell argues the evidence was insufficient to sustain the
jury’s verdict. A jury’s verdict must be upheld on appeal if there
is substantial evidence in the record to support it. Glasser v.
United States, 315 U.S. 60, 80 (1942). In determining whether the
evidence in the record is substantial, we view the evidence in the
light most favorable to the government and inquire whether there is
evidence that a reasonable finder of fact could accept as adequate
and sufficient to support a conclusion of a defendant’s guilt
beyond a reasonable doubt. United States v. Burgos, 94 F.3d 849,
862 (4th Cir. 1996) (en banc). In evaluating the sufficiency of
the evidence, we do not review the credibility of the witnesses and
assume that the jury resolved all contradictions in the testimony
in favor of the government. United States v. Romer, 148 F.3d 359,
364 (4th Cir. 1998). The uncorroborated testimony of one witness
or an accomplice may be sufficient to sustain a conviction. United
States v. Wilson, 115 F.3d 1185, 1190 (4th Cir. 1997).
We conclude there is substantial evidence in the record
to uphold Bell’s conviction of distribution of cocaine base.
Furthermore, because we conclude substantial evidence supports the
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jury’s finding that Bell was in constructive possession of the
cocaine base found in the vehicle he was driving prior to being
arrested, we uphold Bell’s conviction for possession with intent to
distribute cocaine base. See United States v. Laughman, 618 F.2d
1067, 1077 (4th Cir. 1980).
Bell next argues the district court erred in not ordering
a hearing on whether the jury was impartial after learning that the
jury foreperson was wearing a commemorative law enforcement pin
during deliberations. Investigation of alleged juror bias or
misconduct is left to the discretion of the trial judge. United
States v. Peterson, 524 F.2d 167, 177 (4th Cir. 1975). The
district court may deal with such claims as it feels the particular
circumstances require and will be reversed only for an abuse of its
discretion. United States v. Duncan, 598 F.2d 839, 866 (4th Cir.
1979). Because the district court’s inquiry into the matter
revealed that none of the jurors could recall what was on the pin
and that there was no discussion of the pin during deliberations,
we conclude the district court did not abuse its discretion when it
declined to hold a hearing on the alleged misconduct.
Bell has filed a supplemental brief challenging his
sentence under United States v. Booker, 125 S. Ct. 738 (2005).
Because Bell did not raise this issue before the district court, we
review his argument for plain error. To establish plain error: (1)
there must be an error; (2) the error must be plain; and (3) the
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error must affect substantial rights. United States v. White, 405
F.3d 208, 215 (4th Cir. 2005). If the three elements of the plain
error standard are met, we will exercise our discretion to notice
the error only if it seriously affects “the fairness, integrity, or
public reputation of judicial proceedings.” Id. (citation
omitted). The record in this case, however, reveals no Sixth
Amendment error, and no nonspeculative basis for concluding that
the court’s mandatory application of the guidelines affected Bell’s
substantial rights. Having reviewed the sentencing transcript, we
find no indication that the district court wished to sentence Bell
below the guideline range but was constrained by the guidelines
from doing so. Id. at 223-24.
Accordingly, we affirm Bell’s conviction and sentence.
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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