United States v. Lowery , 284 F. App'x 64 ( 2008 )

Filed: July 14, 2008
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4628
(3:05-cr-00216-RJC)
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
QUALO MARTEZ LOWERY,
Defendant - Appellant.
O R D E R
The court amends its opinion filed July 1, 2008, as follows:
On page 17, first full paragraph, line 3, the word
“calendaring” is corrected to read “calculating.”
For the Court - By Direction
/s/ Patricia S. Connor
Clerk
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4628
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
QUALO MARTEZ LOWERY,
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. (3:05-cr-00216-RJC)
Argued: March 18, 2008 Decided: July 1, 2008
Before WILKINSON and MOTZ, Circuit Judges, and William L. OSTEEN,
Jr., United States District Judge for the Middle District of North
Carolina, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Frank Alan Abrams, Arden, North Carolina, for Appellant.
Amy Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville,
North Carolina, for Appellee. ON BRIEF: Gretchen C. F. Shappert,
United States Attorney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
I
Appellant Qualo Martez Lowery was indicted by a federal grand
jury in the Western District of North Carolina and charged in three
separate counts relating to drug possession and distribution. In
Count One, he was charged with a violation of 21 U.S.C. § 846,
conspiracy to possess with intent to distribute cocaine
hydrochloride and cocaine base from January 2001, up to and
including May 24, 2005. Appellant was also charged with two counts
of a violation of 21 U.S.C. § 841(a)(1), one for possession with
intent to distribute cocaine on September 10, 2002 (Count Three),
and the second for possession with intent to distribute cocaine
hydrochloride on December 12, 2002 (Count Four). Shortly after
indictment the United States filed an Information pursuant to 21
U.S.C. § 851, giving Appellant notice that Appellant’s previous
conviction for a felony drug offense would be used to increase the
applicable statutory penalties.
On May 10, 2006, Appellant’s case was tried before a jury.
The jury found Appellant guilty on all three counts. On May 15,
2007, Judge Conrad presided over Defendant’s sentencing hearing.
The court found that certain factors used to enhance Appellant’s
guideline range, namely the amount of drugs attributable to
Appellant and Appellant’s prior convictions, were justified by the
2
evidence presented. Accordingly, Appellant was sentenced to 360
months on each of three counts to be served concurrently.
II
Appellant’s case arose from an alleged conspiracy between
Appellant and other individuals to possess with the intent to
distribute cocaine hydrochloride and cocaine base, as well as two
other substantive offenses in which Appellant was involved in the
sale of cocaine. In preparation for the trial, the United States
arranged to have a number of witnesses testify against Appellant
regarding his drug sales. Some of the witnesses included
individuals who claimed they had long-standing and ongoing drug
conspirator relationships with Appellant.
The United States filed a Notice of Intent to Use 404(b)
Evidence prior to trial. Appellant objected. The district court
held a pretrial hearing regarding the admissibility of the
Government’s 404(b) evidence. The court ruled that Appellant’s
long-standing relationships and transactions with other drug
conspirators, though periods of it predated the dates of the
conspiracy alleged in the indictment, were admissible as
substantive evidence of the existence of the conspiracy. To the
extent the other 404(b) testimony described individuals who
maintained a relationship independent of the conspiracy, the
3
district court allowed the evidence as proof of motive, intent,
knowledge, common scheme or plan, and absence of mistake.
At the hearing, the district court heard Appellant’s objection
to the admission of testimony and a memorandum created by Officer
Douglas Moore describing the September 10, 2002, undercover
transaction with Appellant, the offense charged in Count Three of
the indictment. Officer Moore testified that, while acting in an
undercover capacity, he purchased approximately 33 grams of cocaine
for $1,200 on September 10, 2002, from Appellant. Officer Moore
stated that he had written a report of that incident, but the
report was incomplete because he lost his original case notes
describing the transaction. Despite the loss of his notes, Officer
Moore maintained that his account of the incident was completely
accurate.
Around April 2006 and prior to trial, the Assistant U.S.
Attorney instructed Officer Moore to prepare a new memorandum (“the
Statement”) describing the loss of the report as well as all of the
factual information he could recall about the September 10, 2002,
transaction. Officer Moore prepared the Statement wherein he
incorrectly recorded the date of the transaction with Appellant as
September 19, 2002.1 The Statement was provided to defense counsel
1
Officer Moore’s memorandum contains two errors. Initially,
he incorrectly typed September 19, 2002, as the date of the
September 10, 2002, transaction. Later, in the same memorandum,
Officer Moore recorded the date as September 19, 2003.
4
as Brady material approximately two to three weeks prior to trial.2
After hearing the arguments of counsel, the district court denied
Appellant’s motion to exclude Officer Moore’s testimony, holding
that the initial discovery materials relied upon by Officer Moore
to compose the Statement had been provided to defense counsel prior
to January 2006, and later supplemented with the Statement. The
district court held that the Government could present Officer
Moore’s testimony at trial and that defense counsel could address
the issues concerning Officer Moore’s error on cross-examination.
Appellant proceeded to trial on May 10, 2006, on his plea of
not guilty to all counts. The Government’s first witness was
Officer Moore, who described the September 10, 2002, undercover
narcotics purchase from Appellant. The Government called
Appellant’s uncle, Lonnie Brown, as the second witness. Mr. Brown
testified that Appellant had been involved in the drug business
since the Appellant was 16 years old. He further testified that he
and Appellant Lowery had been working together to sell drugs,
including crack cocaine, since 1993. According to Mr. Brown, he
would get the drugs, “cut it up,” and then he and Mr. Lowery would
sell the drugs.
2
Though the recreated memorandum was not supplied to defense
counsel until a few weeks before trial, defense counsel had already
obtained discovery materials which Officer Moore used to write the
Statement.
5
In 1998, Mr. Brown was arrested for selling drugs and went to
prison. Consequently, his drug-selling partnership with Appellant
ceased. Once Mr. Brown was released from prison, however, their
partnership resumed. Mr. Brown stated that in 2002, he and
Appellant would get powder cocaine, he would cook it into crack
cocaine, and they would sell it. According to Mr. Brown, he and
Appellant sold approximately 10 to 15 kilograms of crack cocaine
between 2002 and 2004.
Other witnesses were called to testify by the Government
regarding Appellant’s drug activity. After the Government rested
its case, the defense introduced evidence in the form of a
stipulation to records establishing that Appellant attended truck
driving school in May 2004. Appellant did not testify. At the
completion of trial, the jury convicted Appellant of all three
counts.
Following Appellant’s conviction, the probation office
prepared a presentence report. Based on Appellant’s relevant drug
quantities presented at trial (more than 10 kilograms of cocaine
base) and classification as a career offender, his resulting
offense level was 38 with a criminal history category of VI.
Appellant objected to the calculation by the probation officer,
arguing that because the indictment charged five kilograms of
powder cocaine and 50 grams of crack cocaine that the relevant drug
quantity used to determine a guideline range was limited to those
6
amounts. Appellant also objected to all the facts contained in the
presentence report that were not found by the jury, including proof
of his prior convictions.
The district court held that the presentence report properly
calculated the advisory sentencing guideline range with an offense
level of 38 and a criminal history category of VI. The district
court imposed a sentence of 360 months on each count, to be served
concurrently, followed by a period of supervised release of 10
years. From that judgment, Appellant submitted a timely notice of
appeal. After the court entered a final judgment, Appellant
appealed. The case is now before this court on Appellant’s appeal
of his conviction and sentence. For the reasons stated below, we
affirm both.
In his appeal, Appellant raises four issues. First, Appellant
contends that the failure to provide timely discovery of Officer
Moore’s notes constitutes a violation of the rule established in
Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963). Second,
Appellant contends that the district court erred in admitting the
testimony of Mr. Brown and others as Rule 404(b) evidence. Third,
Appellant contends that the district court erred in determining the
validity of prior convictions and the relevant drug amounts used
for purposes of sentencing. Fourth, Appellant makes certain vague
and unsubstantiated claims that the trial judge had a conflict
resulting from his participation as a U.S. Attorney in the
7
prosecution of Mr. Brown. We address each of these arguments in
turn.
III
Appellant claims that the Government violated its duty to
provide timely disclosure of all the facts relating to Officer
Moore’s investigation and undercover transaction with Appellant.
Appellant further argues that the late provision of discovery with
a “defective” transaction date of September 19, 2002, deprived him
of a fair trial. As a result, Appellant argues this count of his
indictment should have been dismissed. We disagree.
Though Appellant objected to the use of Officer Moore’s
testimony during trial, he based his objection on the reliability
of the testimony and not on a failure to disclose in accordance
with Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963). When
a party raises an issue for the first time on appeal, we review the
issue under the plain error standard. See United States v. Higgs,
353 F.3d 281, 309 (4th Cir. 2003); Fed. R. Crim. P. 52(b). We may
correct a claimed error if (1) error exists, (2) the error is
plain, and (3) the plain error affected a substantial right.
United States v. Olano, 507 U.S. 725, 733-34, 113 S. Ct. 1770,
1777-78 (1993). The decision to correct the error is left “within
the sound discretion of the court of appeals, and the court should
not exercise that discretion unless the error seriously affects the
8
fairness, integrity or public reputation of judicial proceedings.”
Id. at 732, 113 S. Ct. at 1776 (citing United States v. Young, 470
U.S. 1, 15, 105 S. Ct. 1038 (1985)) (internal quotations omitted).
In support of his claim, Appellant invokes Brady v. Maryland
to justify reversing his conviction for the September 10, 2002,
drug transaction based on the Government’s failure to turn over
exculpatory evidence. In Brady v. Maryland, the Supreme Court held
that “the suppression by the prosecution of evidence favorable to
an accused upon request violates due process where the evidence is
material either to guilt or to punishment, irrespective of the good
faith or bad faith of the prosecution.” Id., 373 U.S. at 87, 83 S.
Ct. at 1196-97. Since its decision in Brady v. Maryland, the Court
has added a corollary to its previous holding, stating that “the
duty to disclose such evidence is applicable even though there has
been no request by the accused, . . . and that the duty encompasses
impeachment evidence as well as exculpatory evidence.” Strickler
v. Greene, 527 U.S. 263, 280, 119 S. Ct. 1936, 1948 (1999)
(citations omitted). The evidence must be material, however,
meaning that a court is justified in setting aside a conviction
only if “there exists a ‘reasonable probability’ that had the
evidence been disclosed the result at trial would have been
different.” Wood v. Bartholomew, 516 U.S. 1, 5, 116 S. Ct. 7, 10
(1995) (citations omitted).
9
Though there is not a hard and fast deadline for disclosing
Brady material, we have previously stated that “[n]o due process
violation occurs as long as Brady material is disclosed to a
defendant in time for its effective use at trial.” U.S. v. Smith
Grading & Paving, Inc., 760 F.2d 527, 532 (4th Cir. 1985) (citation
omitted). However, the time necessary for effective use at trial
may even include disclosure at trial itself. Id. (“The disclosure
of this exculpatory evidence, at trial, does not rise to the level
of a constitutional violation.”).
Appellant received Officer Moore’s supplemental statement
before trial began on May 10, 2006, as he was in possession of the
document about the same time as the Government. The fact that the
Statement was not delivered as part of the Government’s initial
discovery materials is immaterial because the document did not
exist until approximately a month before trial. The memorandum was
created just prior to trial when the Assistant U.S. Attorney
learned that a more detailed report of the September 10, 2002,
transaction might exist in addition to the evidence vouchers and
laboratory report already in possession of both parties.
Accordingly, the Assistant U.S. Attorney questioned Officer Moore
and discovered that the more detailed report containing Officer
Moore’s field notes had been lost. Upon realizing that Officer
Moore had an independent recollection of the events, the attorney
directed Officer Moore to prepare the Statement describing the
10
entire incident, including the loss of the original case notes.
Officer Moore complied and completed the memorandum, which is dated
April 13, 2006.3 The Government disclosed the Statement to
Appellant’s counsel approximately one week after its completion,
giving Appellant two to three weeks to review the document prior to
trial. Such time was sufficient for Appellant to fully analyze the
Statement before trial began, as the Statement was less than one
page in length.
Appellant’s contention that Officer Moore’s memorandum
contained new Brady material is also unavailing. Appellant and his
counsel were clearly aware of all the relevant facts relating to
the discovery material for the September 10, 2002, transaction
prior to trial. When the Government disclosed the Statement,
Appellant already possessed evidence vouchers and a laboratory
report supporting Officer Moore’s account of the transaction. Even
assuming that the Statement contained Brady material, Appellant’s
counsel was able to conduct a thorough cross-examination of Officer
Moore about the conflicting dates and other inaccuracies in the
Statement.4 Thus, any potential Brady material was provided to
3
Apparently, Officer Moore’s recollection and the other
discovery material consistently reflect September 10, 2002, as the
date of the transaction with Appellant. No Brady material existed
prior to the preparation of the supplemental report containing the
wrong date.
4
The following exchange is an example of counsel’s cross-
examination concerning the Statement:
11
Appellant in time for him to effectively prepare for trial. We
therefore find there was no Brady violation as a result of the
timeliness of the disclosure of Officer Moore’s Statement.
Appellant further argues that the district court committed
error in refusing to provide the written copy of Officer Moore’s
Statement to the jury when the jury requested a copy of the
Statement during deliberations. We review a court’s decision to
admit or exclude evidence for abuse of discretion. See United
States v. Cole, 293 F.3d 153, 162 (4th Cir. 2002). In the case at
bar, the district court refused to provide the jury with a copy of
the Statement because it had not been admitted in evidence. (J.A.
256.) In fact, Appellant’s counsel concurred with that decision.
A jury is permitted to consider only those exhibits which have been
admitted as evidence in a case. See United States v. Lentz, 383
F.3d 191, 213 (4th Cir. 2004) (“[O]nly admitted evidence goes to
Q: Do you remember now if you put in this memoranda you
arrested Mr. Lowery?
A: It says he was arrested sir. It doesn’t say – I
didn’t arrest him.
Q: And also has the incorrect date. It says “September
19th of 2003.”
A: That is incorrect.
Q: And he was not arrested.
A: Not by me, no, sir.
(J.A. 92.)
12
the jury at the conclusion of the trial.”). Accordingly, we affirm
the district court’s decision to exclude Officer Moore’s memorandum
from the jury.
IV
Appellant contends that the district court erred in allowing
witnesses to provide testimonial evidence of Appellant’s
participation in drug transactions that occurred before the dates
contained in the indictment. As mentioned above, we review a
court’s decision to admit or exclude evidence for abuse of
discretion. See Cole, 293 F.3d at 162. A district court’s
decision to admit 404(b) evidence “will not be disturbed unless it
was arbitrary or irrational.” United States v. Rawle, 845 F.2d
1244, 1247 (4th Cir. 1988) (citation omitted).
In this case, the Government developed its case using
witnesses who testified as to Appellant’s drug activity prior to
the dates charged in the conspiracy and sought to introduce that
evidence under Rule 404(b) of the Federal Rules of Evidence. Rule
404(b) provides that evidence of “other crimes, wrongs, or acts is
not admissible to prove the character of a person in order to show
action in conformity therewith. It may, however, be admissible for
other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or
accident . . . .” Fed. R. Evid. 404(b). Before admitting evidence
13
of similar acts under Rule 404(b), the court must make a threshold
inquiry as to “whether that evidence is probative of a material
issue other than character.” Huddleston v. United States, 485 U.S.
681, 686, 108 S. Ct. 1496, 1499 (1988). In making this inquiry, a
district court is “entitled to substantial deference, because a
district court is much closer than a court of appeals to the pulse
of the trial.” United States v. Russell, 971 F.2d 1098, 1104 (4th
Cir. 1992) (citation and internal quotations omitted). As such,
its “rulings will not be disturbed absent a clear abuse of
discretion.” Id. (citation omitted).
The district court properly admitted the testimony of Lonnie
Brown and Michael Alexander with respect to the drug distributions
prior to the charged conspiracy period. Mr. Brown described his
participation with Appellant in drug transactions beginning in the
early 1990’s and continuing through the date of the charged
conspiracy. Mr. Alexander testified that he was a runner for
Appellant beginning in the late 1980’s or early 1990’s, and also
purchased cocaine from Appellant and delivered it to other addicts.
Mr. Alexander claimed that he continued his activity through the
time of the charged conspiracy.
Appellant contends that the court erred in its threshold
inquiry in deciding whether to admit the evidence of Appellant’s
drug-related activity prior to the dates of the conspiracy because
the evidence “polluted this case” and “den[ied] the defendant
14
[Appellant] a fair trial.” (Appellant’s Br. 19.) That evidence,
however, was relevant to explain how the illegal relationship
between the participants in the crime developed. See, e.g., United
States v. McMillon, 14 F.3d 948, 955 (4th Cir. 1994) (The court
admitted the testimony of witnesses whose “testimony was helpful in
providing the jury with an understanding of how they knew [the
defendant] and how it came about that they were trusted brokers or
other participants in her dealings.”). The testimony of Brown and
Alexander was also relevant to the issues of Appellant’s knowledge
of the drug trade and intentional participation in the conspiracy.
See United States v. Sanchez, 118 F.3d 192, 195-96 (4th Cir. 1997)
(The court allowed evidence of prior criminal acts, reasoning that
the defendant’s prior dealings with the testifying witness “prove
his knowledge of the drug trade and suggest that he was an
intentional, rather than unwitting, participant in the
conspiracy.”).
Evidence of a defendant’s involvement in drug transactions
prior to the dates charged in a conspiracy is also admissible as
substantive evidence of a defendant’s guilt. Courts have
continually held that “the mere fact that the evidence involved
activities occurring before the charged time frame of the
conspiracy does not automatically transform that evidence into
‘other crimes’ evidence.” United States v. Kennedy, 32 F.3d 876,
885 (4th Cir. 1994) (collecting cases). “Evidence of uncharged
15
conduct is not considered ‘other crimes’ evidence if it ‘arose out
of the same . . . series of transactions as the charged offense, .
. . or if it is necessary to complete the story of the crime (on)
trial.’” Id. (citing United States v. Towne, 870 F.2d 880, 886 (2d
Cir. 1989)). Accordingly, we hold there was no error in the
district court’s evidentiary rulings admitting the testimony of Mr.
Brown and Mr. Alexander relating to their drug transactions with
Appellant prior to the relevant dates of the conspiracy.
V
Appellant argues that the district court violated his rights
under the Sixth Amendment by imposing a sentence that exceeded the
maximum possible penalty allowable based on the findings by the
jury. We review a sentence “under a deferential abuse-of-
discretion standard,” regardless of whether a sentence imposed is
“inside, just outside, or significantly outside the Guidelines
range.” Gall v. United States, ___ U.S. ___, 128 S. Ct. 586, 591
(2007). Our “initial review is for significant procedural error.”
Id. at __, 128 S. Ct. at 597. Then, we “consider the substantive
reasonableness of the sentence imposed.” Id.The Supreme Court stated in United States v. Booker, 543 U.S.
220, 125 S. Ct. 738 (2005), that “the Sixth Amendment is violated
when a district court, acting pursuant to the Sentencing Reform Act
and the [Federal Sentencing] guidelines, imposes a sentence greater
16
than the maximum authorized by the facts found by the jury alone.”
United States v. Hughes, 401 F.3d 540, 546 (4th Cir. 2005) (citing
Booker, 543 U.S. at 243, 125 S. Ct. at 756). Thus, Booker requires
that the maximum penalty be established by the jury verdict.5
Within the applicable maximum statutory penalty, a district
court must begin the process of determining a sentence by correctly
calculating the applicable Guidelines range. Gall v. United
States, ___ U.S. ___, 128 S. Ct. 586, 596 (2007). The applicable
Guideline range, when correctly calculated, is “the starting point
and the initial benchmark,” but it is “not the only consideration.”
Id. at __, 1128 S. Ct. at 596. In fact, a district court “may not
presume that the Guidelines range is reasonable,” but instead is to
“make an individualized assessment based on the facts presented.”
Id. at __, 1128 S. Ct. at 596-97. In doing so, a district court
“must giv[e] both parties an opportunity to argue for whatever
sentence they deem appropriate, . . . then consider all of the §
3553(a) factors to determine whether they support the sentence
requested by a party.” Id. at __, 1128 S. Ct. at 596. We defer to
the district court’s assessment of whether a sentence within the
Guidelines adequately serves sentencing objectives and whether
attempts to achieve uniformity across defendants convicted of
5
Booker’s holding also states that a statutory maximum penalty
may be established by Defendant’s admissions. United States v.
Booker, 543 U.S. 220, 244, 125 S. Ct. 738, 756 (2005). That part
of the holding is not applicable in this case.
17
similar crimes would work an injustice in a particular case.
Kimbrough v. United States, ___ U.S. ___, 128 S. Ct. 558, 574-75
(2007).
Appellant first objects to the district court’s calculation of
the statutory penalties. In this case, Appellant was convicted of
conspiracy to possess with intent to distribute five kilograms or
more of cocaine hydrochloride and in excess of 50 grams of cocaine
base. The jury answered special interrogatories as to Count One as
follows:
As to Count One, you find the defendant guilty.
1A: If guilty, was 5 kilograms or more of a mixture
and substance containing a detectable amount of cocaine
reasonably foreseeable to Qualo Martez Lowery. You
answered “yes.”
1C: If guilty, was 50 grams or more of a mixture and
substance containing a detectible amount of cocaine base
reasonably foreseeable to Qualo Lowery? You answered
“yes.”
(J.A. 257.) The jury’s answer to the special interrogatories
established the application of a maximum statutory penalty for more
than five kilograms of cocaine hydrochloride and 50 grams of
cocaine base. The maximum statutory penalty is life in prison.
See 21 U.S.C. §§ 851, 841(a)(1) and (b)(1)(A). In fashioning a
sentence, the court was well within its discretion to make a
factual finding as to the relative drug amounts in determining a
sentence within the applicable statutory range established by the
jury’s verdict.
18
Appellant also challenges the use of his prior convictions in
determining his sentence, as those were not proven to a jury. This
argument has been rejected by the Supreme Court in Apprendi v. New
Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000). In Apprendi, the
Court stated 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, 120 S. Ct. at 2362-63. The trial
court is therefore authorized to make factual findings regarding a
defendant’s prior convictions and criminal history. See United
States v. Morris, 429 F.3d 65, 72 (4th Cir. 2005); United States v.
Cheek, 415 F.3d 349, 354 (4th Cir. 2005).
In this case, the Government filed a notice of prior
convictions pursuant to 21 U.S.C. § 851, designating Appellant’s
previous felony convictions for possession with intent to sell and
deliver cocaine (1994), possession with intent to sell and deliver
cocaine (1996), and assault with a deadly weapon inflicting serious
injury (1999).6 This subjected Appellant to statutory penalties of
not less than 20 years or more than life in prison. See 21 U.S.C.
§ 841(b)(1)(A).
At sentencing, Appellant objected to the use of the 1994
conviction for possession with intent to sell and deliver cocaine
6
The previous convictions were valid to consider because
Appellant was older than 18 at the time of the prior convictions.
19
as an enhancement pursuant to 18 U.S.C. § 851. He also objected to
his classification as a career offender which was based on his two
previous felony convictions. The Government presented evidence
through fingerprint examination to prove all three of Appellant’s
prior convictions, and Appellant has not challenged this evidence
on appeal. Instead, Appellant’s challenge is simply to the
district court’s authority to find these sentencing facts and
guideline ranges. Once the jury establishes the applicable
statutory maximum penalty with its findings, the court acts as the
finder of fact for purposes of guideline calculation within the
statutory maximum. See Hughes, 401 F.3d at 546. Here, the
district court was well within its authority to consider
Appellant’s prior convictions and find that Appellant was a career
offender when calculating Appellant’s proper guideline.
Additionally, the district court properly determined a
reasonable sentence. Once the court calculated the applicable
statutory penalty and the Guideline range, the court, as required
by Gall and Kimbrough, treated the Guidelines as advisory and heard
arguments on the appropriate sentence. (J.A. 336-434.) Counsel
for Defendant argued for a sentence at the low-end of the
applicable advisory Guideline range. (J.A. 337.) The court then
stated its reasoning in determining a sentence that was “sufficient
but not greater than necessary to accomplish the sentencing and
objectives of punishments . . . .” (J.A. 344-46.) Because the
20
district court imposed a sentence in accordance with the procedure
as established by Booker, Gall, and Kimbrough, we find no Sixth
Amendment violation or other procedural error, and we affirm the
judgment of the district court.7
VI
For the reasons set forth in this opinion, the judgment of the
district court is
AFFIRMED.
7
At sentencing, Appellant, individually and without support of
counsel, claimed for the first time that the trial judge, while
serving as U. S. Attorney, had participated in immunizing or
prosecuting Lonnie Brown, one of the witnesses called by the
Government to testify against Appellant. Appellant first made the
unsubstantiated allegation of a conflict at sentencing on May 15,
2007, during a colloquy between Appellant and the district court.
Appellant’s trial counsel did not join or argue Appellant’s
allegation. We note that Appellant’s brief was filed in this court
on September 26, 2007, by new appellate counsel. Like Appellant’s
allegation in district court, no evidence or specific facts were
presented in support of Appellant’s allegation in the brief before
this court. In fact, the issue was raised at best as an aside in
the discussion of an entirely separate issue and not in a manner
conducive to any resolution of the claim. Given that Appellant has
never raised this issue in a timely, proper, or non-conclusory
fashion, we reject his claim.
21