United States v. Wemmering , 232 F. App'x 372 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4153
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CRYSTAL DAWN WEMMERING,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (5:04-cr-00347-F-3)
Submitted: June 20, 2007 Decided: July 12, 2007
Before MOTZ and SHEDD, Circuit Judges, and HAMILTON, Senior Circuit
Judge.
Affirmed by unpublished per curiam opinion.
Deborrah L. Newton, Raleigh, North Carolina, for Appellant. George
E. B. Holding, United States Attorney, Anne M. Hayes, Jennifer P.
May-Parker, Barbara D. Kocher, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A federal grand jury charged Crystal Dawn Wemmering in a
superseding indictment with conspiracy to distribute and possess
with intent to distribute five kilograms or more of cocaine and a
quantity of marijuana, in violation of 21 U.S.C. § 846 (2000)
(Count One), and conspiracy to commit money laundering, in
violation of 18 U.S.C. § 1956(a)(1)(A), (B) (2000) (Count Two).
The jury convicted Wemmering on Count One with regard to marijuana
and on Count Two; the jury did not find Wemmering guilty on Count
One with regard to cocaine. The district court sentenced Wemmering
to sixty months in prison on Count One and a concurrent 120 months
in prison on Count Two, a downward variance from the guideline
range. Wemmering appeals, challenging the sufficiency of the
evidence to support her convictions and challenging her sentence.1
Finding no merit to her claims, we affirm.
I.
Wemmering first argues that the evidence was insufficient
to support her convictions and therefore the district court erred
by denying her motion pursuant to Rule 29 of the Federal Rules of
Criminal Procedure for judgment of acquittal. We review de novo a
1
Throughout her brief, Wemmering claims that her trial was
tainted by prosecutorial misconduct. However, she did not list
this as an issue in her Statement of Issues on appeal, nor did she
develop this argument or support it with published authority. See
Fed. R. App. P. 28(a)(5), (a)(9)(A). We therefore find that the
issue is not properly before us. See Edwards v. City of Goldsboro,
178 F.3d 231, 241 n.6 (4th Cir. 1999) (“Failure to comply with the
specific dictates of . . . [Rule 28] with respect to a particular
claim triggers abandonment of that claim on appeal”) (internal
citations and quotation marks omitted).
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district court’s decision to deny a Rule 29 motion. United
States v. Smith, 451 F.3d 209, 216 (4th Cir.), cert. denied, 127 S.
Ct. 197 (2006). Where, as here, the motion was based on a claim of
insufficient evidence, the jury’s verdict “must be sustained if
there is substantial evidence, taking the view most favorable to
the Government, to support it.” Glasser v. United States, 315 U.S.
60, 80 (1942); Smith, 451 F.3d at 216. Viewing the evidence in the
light most favorable to the government, the court considers whether
there is evidence that a reasonable fact finder could accept as
adequate and sufficient to establish the 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, this court does not review the credibility of the
witnesses and assumes 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).
In order to show that a defendant participated in a drug
conspiracy, the government must prove: (1) an agreement between
two or more people to violate the law; (2) knowledge of the
essential objective of the conspiracy; (3) knowing and voluntary
involvement; and (4) interdependence among the alleged
conspirators. United States v. Stewart, 256 F.3d 231, 250 (4th
Cir. 2001). The existence of a conspiracy, “as well as an
agreement to participate in the conspiracy, is a question of fact
for the jury[,] [whose findings must be affirmed] . . . unless the
evidence, taken in the light most favorable to the government,
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would not allow a reasonable jury to so find.” United States v.
Harris, 39 F.3d 1262, 1267 (4th Cir. 1994) (internal quotation
marks and citation omitted).
Jason White, a drug dealer, testified at trial that he
had an arrangement with Wemmering under which Wemmering sold
marijuana to a third individual and split the profits with White.
Pursuant to this arrangement, Wemmering sold one-pound quantities
of marijuana to the third party for $4200 on eight separate
occasions. In exchange for $9500, she also permitted White to
trade her Lexus for fifteen pounds of marijuana, which he planned
to sell. Viewing the evidence in the light most favorable to the
government, we find that the evidence showed that Wemmering and
White had an agreement to violate the law by selling marijuana,
Wemmering knew the objective of the conspiracy and knowingly and
voluntarily participated, and Wemmering and White depended on each
other to fulfill the conspiracy’s objective. Although Wemmering’s
trial testimony contradicted White’s, the jury was free to accept
or reject any witness’ testimony and evidently found White’s
testimony more credible. Burgos, 94 F.3d at 862. We find that the
evidence was sufficient to support Wemmering’s conviction on the
marijuana conspiracy charged in Count One.
Turning to Count Two, to prove that Wemmering
participated in a conspiracy to launder money, the government must
show “that (1) a conspiracy to commit . . . money laundering was in
existence, and (2) that during the conspiracy, the defendant knew
that the proceeds . . . had been derived from an illegal activity,
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and knowingly joined in the conspiracy.” United States v. Alerre,
430 F.3d 681, 693-94 (4th Cir. 2005), cert. denied, 126 S. Ct. 1925(2006). The indictment charged Wemmering with conspiring to commit
both promotion and concealment money laundering.
While both offenses require the prosecution to trace the
funds at issue to a specified unlawful activity, a
defendant commits promotion money laundering by
transferring the funds “to promote the carrying on of
specified unlawful activity,” see § 1956(a)(1)(A)(i),
whereas concealment money laundering is committed by
transferring such funds “to conceal or disguise” their
illegal origins, see § 1956(a)(1)(B)(i).
Alerre, 430 F.3d.
We find that the evidence of both concealment and
promotion money laundering was more than sufficient to support
Wemmering’s § 1956 conviction. Wemmering lived with her boyfriend,
Jerry Griffith, in two different houses in Fayetteville, North
Carolina, and he helped her pay her bills. Griffith lacked gainful
employment, and evidence of his drug trafficking activities was
apparent at both homes Wemmering shared with him. Between the drug
deals that occurred at these locations, the large quantities of
drugs, tools of the drug trade, and large sums of cash present in
the homes, not to mention the odor and mess from repackaging of
bales of marijuana, the details Wemmering provided to White of
Griffith’s drug activities after she and Griffith had broken up and
she began dating White, and evidence of Wemmering’s own
participation in the activities, such as purchasing inositol for
Griffith to enable him to dilute the cocaine for resale, the jury
could reasonably infer that Wemmering was aware of Griffith’s drug
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activities and that she knew the source of his income was
controlled substances.
The evidence at trial showed that, although Griffith made
the down payment on a Chevrolet Tahoe, it was titled in Wemmering’s
name. Wemmering knew the Tahoe had a secret compartment used to
transport drugs and that Griffith used the vehicle in his drug
business. By titling the vehicle in her name, Wemmering helped
conceal the source, ownership, and control of the proceeds used to
purchase it. We further find that Wemmering’s acquiescence in the
use of this vehicle, titled in her name, for drug trafficking, was
evidence of promotion money laundering.
Additionally, the evidence presented at trial showed that
Wemmering conspired to conceal the use of drug proceeds to help
Griffith buy a house on Fox Hunt Lane in Fayetteville and that the
house was used to promote drug trafficking. Wemmering bought the
house exclusively in her own name, although she never lived there.
She told one of the investigating officers that Griffith gave her
$9500 in drug proceeds to use as the down payment. Furthermore,
Griffith and another drug dealer moved into the house and continued
to conduct drug activities at this location as they had at the two
homes Wemmering had previously shared with Griffith. In light of
Wemmering’s knowledge of Griffith’s drug trafficking history, we
find that it was reasonably foreseeable to her that Griffith would
use the Fox Lane house as the base for his illegal activities.
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We find that the evidence was more than sufficient to
show that Wemmering conspired to commit both promotion and
concealment money laundering.
II.
The sentence imposed by the district court was sixty-
eight months below the bottom of the guideline range, giving
Wemmering a thirty-six percent downward variance below the lowest
guideline sentence. Wemmering’s challenges to her sentence focus
on the drug quantities attributed to her for sentencing purposes.
This court reviews the imposition of a sentence for
reasonableness. United States v. Booker, 543 U.S. 220, 260-61
(2005). After Booker, courts must calculate the appropriate
guideline range, making any proper factual findings. United
States v. Davenport, 445 F.3d 366, 370 (4th Cir. 2006). The court
then should consider the resulting advisory guideline range in
conjunction with the factors under 18 U.S.C.A. § 3553(a) (West 2000
& Supp. 2007), and determine an appropriate sentence. Davenport,
445 F.3d at 370. “[A] sentence within the proper advisory
Guidelines range is presumptively reasonable.” United States v.
Johnson, 445 F.3d 339, 341 (4th Cir. 2006). Even if a sentence is
below the advisory guideline range, generally it will be deemed
reasonable “if the reasons justifying the variance are tied to
§ 3553(a) and are plausible.” United States v. Moreland, 437 F.3d
424, 434 (4th Cir.), cert. denied, 126 S. Ct. 2054 (2006).
Wemmering incorrectly maintains that, following Booker,
facts that increase the offense level must be proven beyond a
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reasonable doubt. The remedial portion of Booker specifically
rejected this approach. Booker, 543 U.S. at 246. After Booker,
the sentencing court continues to make factual findings concerning
sentencing factors by a preponderance of the evidence. United
States v. Morris, 429 F.3d 65, 72 (4th Cir. 2005), cert. denied,
127 S. Ct. 121 (2006). Thus, the district court’s determination of
Wemmering’s offense level, based on findings made by a
preponderance of the evidence, was appropriate.
Wemmering also argues that the district court erred by
attributing to her for sentencing purposes cocaine and ecstasy when
the jury acquitted her of the cocaine conspiracy charge and she was
not even charged with ecstasy in the indictment. However,
sentencing courts have always maintained the power to consider the
broad context of a defendant’s conduct, even when the court’s view
conflicts with a jury verdict. See United States v. Watts, 519
U.S. 148, 152 (1997) (holding that Double Jeopardy Clause did not
bar consideration of acquitted conduct in sentencing). In Watts,
the Supreme Court held “that a jury’s verdict of acquittal does not
prevent the sentencing court from considering conduct underlying
the acquitted charge, so long as the conduct has been proved by a
preponderance of the evidence.” Id. at 152. Booker did “not, in
the end move any decision from judge to jury or change the burden
of persuasion.” Morris, 429 F.3d at 72. Furthermore, like
acquitted conduct, uncharged conduct may be considered relevant
conduct for sentencing purposes. United States v. Jones, 31 F.3d
1304, 1316 (4th Cir. 1994); United States v. Carroll, 3 F.3d 89,
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101-02 & n.10 (4th Cir. 1993). Based on the evidence presented at
trial, we find that a preponderance of the evidence supports the
district court’s finding for sentencing purposes that Wemmering was
responsible for specific quantities of cocaine and ecstasy.
Finally, Wemmering claims that the sentence imposed by
the district court violates the principles of Apprendi v. New
Jersey, 530 U.S. 466 (2000). The Supreme Court held in Apprendi
that “[o]ther than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable
doubt.” Id. at 490. The statutory maximum penalty for a marijuana
offense with no prior drug conviction and no charged drug quantity
is sixty months, see 21 U.S.C. § 841(b)(1)(D) (2000), and the
statutory maximum penalty for money laundering is twenty years,
without regard to any drug quantity, see 18 U.S.C. § 1956(a)(1)(B).
Wemmering’s sixty-month sentence on the marijuana conspiracy
conviction and 120-month sentence on the money laundering
conspiracy conviction were both within the statutory maximum and
hence did not violate Apprendi.
In the absence of other challenges, we find that
Wemmering’s downward variance sentence is reasonable.
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III.
For these reasons, we affirm Wemmering’s convictions 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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