United States v. Adams ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 95-5671
TIMOTHY ADAMS, a/k/a Rodney
Clark, a/k/a Smitt,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of North Carolina, at Winston-Salem.
N. Carlton Tilley, Jr., District Judge.
(CR-94-302)
Argued: October 30, 1996
Decided: December 17, 1996
Before WILLIAMS and MICHAEL, Circuit Judges, and
DOUMAR, Senior United States District Judge for the
Eastern District of Virginia, sitting by designation.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
ARGUED: David G. Secular, New York, New York, for Appellant.
Michael Francis Joseph, Assistant United States Attorney, Greens-
boro, North Carolina, for Appellee. ON BRIEF: Walter C. Holton,
Jr., United States Attorney, Greensboro, North Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Timothy Adams was convicted (after a jury trial) of conspiracy to
possess with the intent to distribute cocaine base ("crack"). See 21
U.S.C. §§ 841(a)(1) and 846. The district court sentenced him to life
without parole. See 21 U.S.C. § 841(b) and U.S.S.G. § 2D1.1. Adams
challenges his conviction and sentence, claiming that the evidence
against him was insufficient to establish the conspiracy charged, that
certain evidence was erroneously admitted, that the statute and sen-
tencing guidelines under which he was sentenced are unconstitutional,
and that the sentence imposed violates his rights under the Eighth
Amendment. We find no merit in these contentions and affirm the dis-
trict court.
I.
The evidence, viewed in the light most favorable to the govern-
ment, see United States v. Brewer, 1 F.3d 1430, 1437 (4th Cir. 1993),
established the following. Adams was the leader of a group that
brought cocaine from New York for sale in Winston-Salem, North
Carolina. Adams recruited Paula and Clarence Bonaparte, husband
and wife, to transport the cocaine from New York to Winston-Salem.
Once the drugs reached Winston-Salem, Adams had several people
who acted as "runners" or street distributors for him. Adams and Pat-
rick Harvey, another large operator, acted as backup suppliers for
each other. One of Adams' sellers, Tyrone Smith, testified that
Adams told him that he could get drugs from Patrick Harvey when
Adams was out of stock. Paula Bonaparte testified that she made trips
to New York to fetch cocaine for both Adams and Harvey. Finally,
Harvey and Adams shared profitable dealers.
II.
Adams first argues that the government's proof against him estab-
lished at most two separate conspiracies which were different from
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the one far-reaching conspiracy led by Patrick Harvey and charged in
the indictment. Specifically, Adams claims that the evidence was
insufficient to link him to Harvey's broad conspiracy. A participant's
link to a drug conspiracy can be established by showing that he has
acted in furtherance of a "mutual interest in sustaining the overall
enterprise of catering to the ultimate demands of a particular drug
consumption market." United States v. Burgos , 94 F.3d 849, 858 (4th
Cir. 1996) (en banc) (citation omitted). We are satisfied that the evi-
dence, which we summarized above in part I, was sufficient to link
Adams and Harvey in an overall conspiracy to supply the drug market
in Winston-Salem.
III.
Adams next makes two complaints about the admission of evi-
dence. First, he argues that the district court committed reversible
error in admitting evidence that he and his co-conspirators possessed
firearms. Adams contends that because the indictment did not charge
him with firearms violations, the evidence about guns was irrelevant
and unduly prejudicial. We have held, however, that evidence of fire-
arms possession is relevant in narcotics conspiracy cases. United
States v. Ricks, 882 F.2d 885, 892 (4th Cir. 1989), cert. denied, 493
U.S. 1047 (1990); United States v. Collazo, 732 F.2d 1200, 1206 (4th
Cir. 1984), cert. denied, 496 U.S. 1105 (1985). However, evidence of
firearms possession may not be introduced if the government is trying
to prove an uncharged crime or if the evidence unfairly prejudices the
defendant. Neither limitation is implicated in this case. The references
to guns were brief and in the context of showing that guns were
around when drugs were being sold, nothing more. Thus, the district
court did not err in allowing testimony about the firearms.
Second, Adams argues that he was denied a fair trial because sev-
eral witnesses (during the Government's case) mentioned that Adams
was in prison during a portion of the conspiracy period. Specifically,
Adams says that testimony about his earlier imprisonment was evi-
dence of his propensity for crime that is inadmissible under Rule
404(b) of the Federal Rules of Evidence. To begin with, we note that
the government did not ask its witnesses about Adams' prior impris-
onment. The witnesses simply mentioned the fact inadvertently in
answering questions on other topics. The government argues that this
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testimony was proper in any event because it served to fill a chrono-
logical or conceptual void. See United States v. Yusufu, 63 F.3d 505,
511 (7th Cir.), cert. denied, 116 S. Ct. 578 (1995). We need not
decide whether it was error for the jury to hear testimony about
Adams prior incarceration because to the extent there might have
been error, it was cured or waived. After each mention of Adams'
prior imprisonment, the district court instructed the jury to disregard
the testimony because it had nothing to do with this trial. We believe
that this instruction was sufficient to cure any error. Bell v. Evatt, 72
F.3d 421, 434 (4th Cir. 1995) (noting that there is an assumption that
jurors follow their instructions), cert. denied , 116 S. Ct. 2533 (1996).
Finally, even if any error was not cured, it was waived. As part of his
alibi defense Adams offered testimony from his own witnesses that
he was incarcerated during a portion of the conspiracy. Thus, Adams
was not prejudiced by government witness testimony that he had been
in prison.
IV.
Adams raises constitutional challenges to his sentence. He argues
that the statute and the Sentencing Guidelines, which impose stiffer
sentences for crack, see 21 U.S.C. § 841(b) and U.S.S.G. § 2D1.1,
discriminate against African Americans in violation of the Equal Pro-
tection Clause. Adams contends that we should use a strict scrutiny
analysis to evaluate this claim. He acknowledges that we have upheld
the constitutionality of the stiffer crack sentences under a rational
basis standard. United States v. Thomas, 900 F.2d 37 (4th Cir. 1990).
In Thomas we noted that "21 U.S.C. § 841(b) does not discriminate
on the basis of a suspect classification or the exercise of a fundamen-
tal right, and thus does not require heightened scrutiny." Id. at 39.
Adams argues, however, that the Supreme Court's recent decision in
Adarand Constructors, Inc. v. Pena, 115 S. Ct. 2097 (1995), changes
the landscape and requires us to re-evaluate our decision in Thomas.
We disagree.
Adams says that Adarand stands "for the proposition that because
it is impossible to determine the true intent behind a statute, any law
which has a disparate racial impact must be subjected to the standard
of strict scrutiny in order for the demands of due process to be satis-
fied." Brief of appellant at 37. Adams misreads Adarand. The
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Supreme Court said in Adarand, "We note, incidentally, that this case
concerns only classifications based explicitly on race, and presents
none of the additional difficulties posed by laws that, although
facially race neutral, result in racially disproportionate impact and are
motivated by a racially discriminatory purpose." Adarand, 115 S. Ct.
at 2105 (emphasis added). Thus, the Court made clear that it was not
reversing prior disparate impact cases that required a showing of dis-
criminatory intent for strict scrutiny to apply. See, e.g., Washington
v. Davis, 426 U.S. 229, 242 (1976) (a showing of disproportionate
impact standing alone is insufficient to trigger strict scrutiny analy-
sis). Here, Adams has offered nothing which causes us to re-visit
Thomas because he (Adams) has alleged nothing more than disparate
impact. His Equal Protection challenge therefore fails.
Adams also claims that his sentence -- life imprisonment without
parole -- was so disproportionate to his offense that it constitutes a
violation of the Eighth Amendment's Cruel and Unusual Punishment
Clause. In Solem v. Helm, 463 U.S. 277 (1983), the Supreme Court
held that "a criminal sentence must be proportionate to the crime for
which the defendant has been convicted." Solem, 463 U.S. at 290. We
have said that apart from capital sentencing a proportionality analysis
is required only in those cases involving life sentences without parole.
United States v. Melton, 970 F.2d 1328, 1336 (4th Cir. 1992).
Because this case involves such a sentence, proportionality review is
appropriate.
In Solem the Supreme Court offered several objective factors to
guide courts in the determination of whether a sentence is propor-
tional to the crime committed. First, we must consider the gravity of
the offense and the harshness of the penalty. Id. Second, we look at
the sentences imposed for other crimes within the same jurisdiction
to determine whether the instant conduct is treated similarly to other
crimes of comparable gravity. Id. at 291. And finally, we compare the
sentences imposed in other jurisdictions for the same crime. Id.
The gravity of Adams' offense is heavy. We have stated that
"[d]rug use, and the use of crack in particular, has become a perva-
sive, destructive force in American society." United States v.
D'Anjou, 16 F.3d 604, 613 (4th Cir.), cert. denied, 114 S. Ct. 2754(1994). There was considerable evidence that Adams managed a ring
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of crack distributors by coordinating procurement, marketing, and dis-
tribution. Thus, the district court correctly characterized him as a
"leader" and increased his offense level by four pursuant to U.S.S.G.
§ 3B1.1(a). Additionally, there was evidence that Adams possessed a
dangerous weapon during the commission of the charged crime. Thus,
the district court correctly enhanced his sentence by two levels pursu-
ant to U.S.S.G. § 2D1.1(b)(1). In sum, the district court properly
applied the Sentencing Guidelines which resulted in an offense level
of 44 and which accurately reflected the gravity of the offense. Given
the severity of the offense Adams committed, we cannot say that his
punishment was disproportionately harsh. See United States v.
Meirovitz, 918 F.2d 1376, 1381 (8th Cir. 1990), cert. denied, 502 U.S.
829 (1991).
Consideration of steps two and three of the Solem structure does
not alter our conclusion. As we said in D'Anjou , "[b]ecause sentenc-
ing under the Federal Sentencing Guidelines involves the calculation
of offense characteristics across criminal categories, it is difficult to
undertake the type of comparative analysis that the pre-guidelines
Solem decision advises." D'Anjou, 16 F.3d at 613. Nevertheless, cir-
cuit precedent instructs us (a) that a life sentence for a major drug vio-
lation is not disproportionate in comparison with other sentences
under the Guidelines and (b) that the statutes of the states within this
circuit impose similarly severe sentences for narcotics violations of
the magnitude involved in this case. Id. Consequently, steps two and
three of the Solem test are satisfied, and Adams' Eighth Amendment
challenge fails.
V.
For the foregoing reasons, we affirm Adams' conviction and sen-
tence.
AFFIRMED
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