United States v. Betts , 26 F. App'x 180 ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4374
DOUGLAS MCARTHUR BETTS, JR.,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
W. Earl Britt, Senior District Judge.
(CR-00-93)
Submitted: November 30, 2001
Decided: December 26, 2001
Before WILKINS, WILLIAMS, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Jennifer Haynes Rose, LAW OFFICE OF JENNIFER HAYNES
ROSE, Apex, North Carolina, for Appellant. John Stuart Bruce,
United States Attorney, Anne M. Hayes, Assistant United States
Attorney, Winnie Jordan Reaves, Assistant United States Attorney,
Raleigh, North Carolina, for Appellee.
2 UNITED STATES v. BETTS
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Douglas McArthur Betts, Jr., was convicted by a jury on two
counts of distribution of cocaine base, in violation of 21 U.S.C.A.
§ 841 (West 1999 & Supp. 2001); conspiracy to possess with intent
to distribute cocaine base, in violation of 21 U.S.C.A. § 846 (West
1999 & Supp. 2001); attempted possession with intent to distribute at
least fifty grams of cocaine base, in violation of 21 U.S.C.A. § 841;
and possession with intent to distribute cocaine base, in violation of
21 U.S.C.A. § 841. He was subsequently sentenced to 151 months
imprisonment. Finding no reversible error, we affirm Betts’ convic-
tions and sentence.
On appeal, Betts first argues that the district court erred in admit-
ting testimony regarding certain "prior bad acts," in violation of Fed.
R. Evid. 404(b). Rule 404(b) forbids admission of prior bad acts evi-
dence to show later action in conformity therewith. This court gener-
ally reviews the district court’s admission of such evidence for abuse
of discretion. United States v. Chin, 83 F.3d 83, 87 (4th Cir. 1996).
To abuse its discretion, a district court must either fail or refuse to
exercise its discretion, or rely on an erroneous legal or factual premise
in the exercise of its discretionary authority. James v. Jacobson, 6
F.3d 233, 239 (4th Cir. 1993). Rule 404(b) decisions are not reversed
unless they are "arbitrary or irrational." United States v. Haney, 914
F.2d 602, 607 (4th Cir. 1990). We find no abuse of discretion in the
court’s admission of the challenged evidence.
Betts next argues that the district court abused its discretion in
admitting into evidence a transcript of a tape-recorded conversation
between Betts and a co-conspirator. This court reviews for abuse of
discretion a district court’s decision to allow a transcript to aid in the
presentation of recorded evidence. United States v. Collazo, 732 F.2d
1200, 1203-04 (4th Cir. 1984). In reviewing the record, and particu-
UNITED STATES v. BETTS 3
larly the district court’s limiting instructions to the jury, we find no
abuse of discretion.
Betts also argues on appeal that the district court erred in including
certain criminal acts as relevant conduct for purposes of sentencing.
This court conducts de novo review of legal interpretation of the
guidelines and reviews the underlying factual findings for clear error.
United States v. Williams, 977 F.2d 866, 869 (4th Cir. 1992); United
States v. Daughtrey, 874 F.2d 213, 217 (4th Cir. 1989). Conduct not
specified in the count of conviction is relevant conduct if it is part of
the same course of conduct or part of a common scheme or plan. U.S.
Sentencing Guidelines § 1B1.3(a)(2), comment. (n.9) (2000); Wil-
liams, 977 F.2d at 870; United States v. McNatt, 931 F.2d 251, 258
(4th Cir. 1991). In determining whether uncharged conduct is part of
the same course of conduct or common scheme as the offense of con-
viction, courts look to the similarity, regularity, and temporal proxim-
ity. Williams, 977 F.2d at 870; United States v. Mullins, 971 F.2d
1138, 1143-45 (4th Cir. 1992). In light of the foregoing criteria, we
find that the district court did not err in considering the challenged
acts as relevant conduct for purposes of sentencing.
Additionally, Betts challenges the sufficiency of the evidence to
support each conviction. This court must affirm the conviction if there
is substantial evidence, when viewed in the light most favorable to the
Government, to support the verdict. Glasser v. United States, 315
U.S. 60, 80 (1942). In determining whether the evidence is substan-
tial, this court views the evidence in the light most favorable to the
Government and inquires whether there is evidence sufficient to sup-
port a finding of guilt beyond a reasonable doubt. United States v.
Burgos, 94 F.3d 849, 862 (4th Cir. 1996). In evaluating the suffi-
ciency of the evidence, this court does not review witness credibility
and assumes the fact finder resolved all contradictions in the evidence
in the Government’s favor. United States v. Romer, 148 F.3d 359, 364
(4th Cir. 1998). The fact finder, not the reviewing court, weighs the
credibility of the evidence and resolves any conflicts in the evidence
presented, and if the evidence supports different reasonable interpre-
tations, the jury decides which to believe. United States v. Murphy,
35 F.3d 143, 148 (4th Cir. 1994). We have reviewed the record and
we find sufficient evidence to support Betts’ convictions on all five
counts.
4 UNITED STATES v. BETTS
Betts also claims several instances of ineffective assistance of
counsel. This court reviews claims of ineffective assistance of counsel
on direct appeal only when the ineffectiveness conclusively appears
on the record. United States v. Smith, 62 F.3d 641, 651 (4th Cir.
1995). Otherwise, such claims should be raised in the district court in
a post-conviction proceeding rather than in this court by direct appeal.
Id. Finding that no ineffectiveness conclusively appears on the record,
we dismiss this claim.
Last, Betts alleges that the district court erred in denying his
motion for release pending appeal. Specifically, he asserts that the
district court failed to state reasons for its denial. Because the applica-
ble statutory provision mandates that Betts be detained, the district
court was not compelled to state its reason for denying Betts’ motion.
See 18 U.S.C.A. § 3143(b)(2) (West 2000).
Accordingly, we affirm Betts’ convictions and sentence. We dis-
pense 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