United States v. Puryear , 335 F. App'x 291 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4951
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TONY L. PURYEAR,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Judge. (3:08-cr-00077-HEH-1)
Submitted: June 11, 2009 Decided: July 2, 2009
Before MICHAEL and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Robert L. Flax, Richmond, Virginia, for Appellant. Dana J.
Boente, Acting United States Attorney, Peter S. Duffey,
Assistant United States Attorney, Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Tony L. Puryear appeals his convictions and 108 month
sentence for distribution of crack cocaine, in violation of 21
U.S.C. § 841(a)(1), (b)(1)(B)(iii), (b)(1)(C) (2006). Puryear’s
counseled appellate brief raises ten claims: Puryear’s
convictions violated Apprendi v. New Jersey, 530 U.S. 466 (2000)
(Claim 1); his convictions violated the Commerce Clause (Claim
2); the judge erred in excluding evidence of the prior
conviction of a trial witness, Alice Chambers (Claim 3); the
district court should have excluded evidence of purchases made
by Chambers’s friend, Earl (Claim 4); the court erred in denying
Puryear’s motions for judgment of acquittal (Claim 5) and for a
mistrial (Claim 6); the evidence was insufficient to support
Puryear’s conviction (Claim 7); Puryear’s conviction should have
been reversed as he was a victim of entrapment (Claim 8);
Puryear’s house should not have been forfeited (Claim 9); and
Puryear’s sentence is unreasonable (Claim 10).
While Puryear’s counsel contends that Claim 7 is
meritorious, he asserts that the remaining issues are raised
pursuant to Anders v. California, 386 U.S. 738 (1967). Further,
as to Claims 1-6 and 8-9, counsel explicitly concedes that each
issue is without merit. Because we conclude that counsel’s
effort to combine a meritorious claim with claims conceded to be
lacking in merit does not comport with the Anders framework, see
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id. at 744-45 (setting forth procedure to be followed when
counsel finds “case to be wholly frivolous”), we decline to
consider this appeal pursuant to Anders. Accordingly, the
judgment of the district court is affirmed as to Claims 1-6 and
8-9. As to Claim 10, however, while it is generally identified
as submitted pursuant to Anders, counsel does not concede that
it is without merit. Accordingly, out of an abundance of
caution, we consider that Claim 10 (a challenge to Puryear’s
sentence), along with Claim 7 (an attack on the sufficiency of
the evidence), are properly before the Court. Finding these
claims to be without merit, however, we affirm.
I. Sufficiency of the Evidence
“A defendant challenging the sufficiency of the
evidence faces a heavy burden.” United States v. Foster, 507
F.3d 233, 245 (4th Cir. 2007), cert. denied, 128 S. Ct. 1690(2008). We review a sufficiency of the evidence challenge by
determining whether, viewing the evidence in the light most
favorable to the Government, any rational trier of fact could
find the essential elements of the crime beyond a reasonable
doubt. United States v. Collins, 412 F.3d 515, 519 (4th Cir.
2005).
In order to prove distribution of crack cocaine, the
Government must show: (1) knowing or intentional distribution
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of crack cocaine, and (2) knowledge, at the time of
distribution, that the substance distributed was a controlled
substance. See United States v. Brower, 336 F.3d 274, 276 (4th
Cir. 2003).
In this case, the evidence is more than sufficient to
support Puryear’s convictions of eleven counts of distribution
of crack cocaine. During the trial, Chambers described, in
detail, each of her purchases from Puryear, specifically
recalling the dates on which they occurred and the particular
conversations that went on during each one. Sound and video
recordings were played before the jury, depicting several of the
controlled buys. Before and after each buy, Chambers was
searched by law enforcement officers. The lead detective
involved in the investigation testified as to the procedures
taken to ensure that the eleven drug quantities Chambers bought
from Puryear remained unaltered from the time they were taken
from Chambers to the time they were tested at the lab. All
eleven samples tested positive for crack cocaine. Accordingly,
we find that substantial evidence supports Puryear’s
convictions.
II. Reasonableness of Sentence
As Puryear attempted to submit this issue pursuant to
Anders, it is arguable that he is conceding that this issue,
like the other eight mentioned above, is without merit.
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However, in his brief, he fails to explicitly state that the
district court’s sentence was reasonable, or that an appeal of
this issue is lacking in merit. Instead, he first contends that
the fact that Puryear sold drugs for profit was not a
sufficiently aggravating factor to merit a sentence at the top
of the guidelines range. Alternatively, Puryear argues that if
he had only been convicted of Counts 9 and 10, he would only
have been responsible for 8.642 grams of crack, yielding an
adversary sentencing range of sixty-three to seventy-eight
months’ imprisonment.
Puryear’s second contention, an apparent attack on the
procedural reasonableness of his sentence, is dependent upon our
finding that the evidence was insufficient to support Puryear’s
convictions of the eleven counts of crack distribution totaling
forty-two grams. However, as the evidence did support such a
finding, Puryear’s second contention is without merit.
“Regardless of whether the sentence imposed is inside
or outside the [g]uidelines range, the appellate court must
review the sentence under an abuse-of-discretion standard.”
Gall v. United States, 128 S. Ct. 586, 597 (2007). Appellate
courts are charged with reviewing sentences for reasonableness,
with appellate consideration of both the procedural and
substantive reasonableness of a sentence. Id. at 594, 597.
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In determining procedural reasonableness, we first
assess whether the district court properly calculated the
defendant’s advisory guidelines range. Gall, 128 S. Ct. at 596-
97. We then determine whether the district court failed to
consider the 18 U.S.C. § 3553(a) (2006) factors and any
arguments presented by the parties, treated the guidelines as
mandatory, selected a sentence based on “clearly erroneous
facts,” or failed to sufficiently explain the selected sentence.
Id. at 597; United States v. Pauley, 511 F.3d 468, 473 (4th Cir.
2007). Finally, we review the substantive reasonableness of the
sentence, “taking into account the ‘totality of the
circumstances, including the extent of any variance from the
[g]uidelines range.’” Pauley, 511 F.3d at 473 (quoting Gall,
128 S. Ct. at 597).
We may afford sentences that fall within the properly
calculated guidelines range a presumption of reasonableness on
appeal. See Gall, 128 S. Ct. at 597. This presumption can be
rebutted only by showing “that the sentence is unreasonable when
measured against the § 3553(a) factors.” United States v.
Montes-Pineda, 445 F.3d 375, 379 (4th Cir. 2006) (internal
quotation marks and citation omitted).
After reviewing the trial transcript, we find that
Puryear’s sentence is both procedurally and substantively
reasonable. First, the district court properly calculated
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Puryear’s advisory guidelines sentence at eighty-seven to 108
months’ imprisonment. Then, after giving both Puryear and his
counsel a chance to speak, the district court determined the
appropriate sentence. The court indicated that it considered
the 18 U.S.C. § 3553(a) (2006) sentencing factors, specifically
the nature and circumstances of the offense, the characteristics
of the defendant, and the need to promote respect for the law.
Moreover, because the sentence fell within the
advisory guidelines range, we afford it a presumption of
reasonableness on appeal. See Gall, 128 S. Ct. at 597. Though
Puryear believes that his sale of drugs for pure commercial
profit was insufficient justification for a sentence at the top
of the guidelines range, Puryear’s subjective disagreement with
the judge’s rationale is inadequate to rebut the presumption of
reasonableness. The judge listed several reasons in support of
his sentence, including the fact that Puryear did not have a
single, isolated conviction for drug distribution, but instead
demonstrated a recurring pattern of illegal behavior.
Accordingly, we find that Puryear’s sentence was reasonable.
Therefore, we affirm the judgment of the district
court and deny Puryear’s motions to appoint new counsel and to
file a pro se brief. We dispense with oral argument as the
facts and legal contentions are adequately presented in the
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materials before the court and further argument would not aid
the decisional process.
AFFIRMED
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