United States v. Johnson , 363 F. App'x 247 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5152
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
BRUCE JOHNSON,
Defendant – Appellant.
No. 08-5194
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
CHARLES JONES,
Defendant – Appellant.
Appeals from the United States District Court for the Eastern
District of Virginia, at Alexandria. Liam O’Grady, District
Judge. (1:08-cr-00240-LO-2; 1:08-cr-00240-LO-3)
Submitted: January 4, 2010 Decided: January 28, 2010
Before MICHAEL and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Christopher B. Amolsch, LAW OFFICE OF CHRISTOPHER AMOLSCH,
Alexandria, Virginia; Mark H. Bodner, Fairfax, Virginia, for
Appellants. Dana J. Boente, United States Attorney, Lawrence J.
Leiser, Assistant United States Attorney, Alexandria, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
A jury convicted Bruce Johnson and Charles Jones of
conspiracy to possess with intent to distribute five kilograms
or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 846
(2006). The district court sentenced Johnson to 135 months’
imprisonment and Jones to 188 months’ imprisonment. On appeal,
Johnson argues that the district court’s limitation on his
cross-examination of the Government’s cooperating witness
violated his Sixth Amendment right to confront witnesses against
him. Jones appeals his sentence, arguing the district court’s
application of a two-level enhancement for possession of a
firearm was erroneous and that his sentence is unreasonable.
The two appeals have been consolidated. Finding no error, we
affirm.
Johnson’s sole claim is that the district court erred
in limiting his cross-examination of the Government’s
cooperating witness, Jubal Culver, about potential sources of
bias. A district court’s limitation on a defendant’s
cross-examination of a Government witness is reviewed for abuse
of discretion. United States v. Smith, 451 F.3d 209, 220
(4th Cir. 2006). An improper denial of an opportunity to
cross-examine a witness is subject to harmless error review.
United States v. Turner, 198 F.3d 425, 430-31 (4th Cir. 1999).
While the Confrontation Clause protects a defendant’s right to
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cross-examine a witness regarding potential bias, this right to
cross-examination is not unlimited. Delaware v. Van Arsdall,
475 U.S. 673, 678-79 (1986). Rather, trial judges “retain wide
latitude . . . to impose reasonable limits” on cross-examination
based on concerns such as harassment, prejudice, confusion of
the issues, and relevance. Id. at 679. A district court does
not abuse its discretion by prohibiting a defendant from asking
a cooperating witness about the specific sentence the witness
faced absent cooperation or the specific sentence the witness
hoped for due to any cooperation. United States v. Cropp,
127 F.3d 354, 358-59 (4th Cir. 1997). The relevant question is
whether the defendant is permitted to question a witness’
“subjective understanding of his bargain with the government[,]
for it is this understanding which is of probative value on the
issue of bias.” United States v. Ambers, 85 F.3d 173, 176
(4th Cir. 1996) (quoting Hoover v. Maryland, 714 F.2d 301, 305,
306 (4th Cir. 1983) (internal quotation marks omitted)).
We have reviewed the transcript and find the district
court did not abuse its discretion in limiting Johnson’s cross-
examination of Culver. Johnson was given an opportunity to
extensively cross-examine the witness on the terms and potential
benefits of his plea agreement. We find the district court
permissibly restricted questioning of Culver as to the actual
sentence an additional gun charge would have carried. Finally,
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even if this court were to assume that the district court’s
limitation on Johnson’s cross-examination of the witness was an
abuse of discretion, we find any error by the district court was
harmless in light of the evidence presented at trial.
Accordingly, Johnson’s claim is without merit.
Jones raises two claims on appeal. First, Jones
claims the district court erred in enhancing his base offense
level two levels pursuant to U.S. Sentencing Guidelines Manual
§ 2D1.1(b)(1) (2007) (“USSG”) based on the firearms possessed by
his co-conspirators. According to Jones, the Government did not
adduce a scintilla of evidence to show that he had advance
knowledge, or should have known, that guns would be carried or
used by his co-conspirators.
Whether the district court properly applied the
two-level USSG § 2D1.1(b)(1) enhancement is a factual question
reviewed for clear error. See United States v. McAllister,
272 F.3d 228, 234 (4th Cir. 2001). Under a clear error standard
of review, this court will reverse only if “left with the
definite and firm conviction that a mistake has been committed.”
United States v. Stevenson, 396 F.3d 538, 542 (4th Cir. 2005)
(quoting Anderson v. Bessemer City, 470 U.S. 564, 573 (1985)).
According to USSG § 2D1.1(b)(1), a district court is
to increase a defendant’s base offense level two levels “[i]f a
dangerous weapon (including a firearm) was possessed.” USSG
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§ 2D1.1(b)(1). “The adjustment should be applied if the weapon
was present, unless it is clearly improbable that the weapon was
connected with the offense.” USSG § 2D1.1(b)(1), cmt. n.3. The
enhancement is appropriate when “‘the weapon was possessed in
connection with drug activity that was part of the same course
of conduct or common scheme as the offense of conviction.’”
McAllister, 272 F.3d at 233-34 (quoting United States v. Ortega,
94 F.3d 764, 767 (2d Cir. 1996)).
It is well established that a conspirator is liable
for all reasonably foreseeable acts of a co-conspirator done in
furtherance of the conspiracy. Pinkerton v. United States,
328 U.S. 640, 646-47 (1946); United States v. Cummings, 937 F.2d
941, 944 (4th Cir. 1991). As this court has noted, “[a]bsent
evidence of exceptional circumstances, . . . it [is] fairly
inferable that a codefendant’s possession of a dangerous weapon
is foreseeable to a defendant with reason to believe that their
collaborative criminal venture includes an exchange of
controlled substances for a large amount of cash.” United
States v. Kimberlin, 18 F.3d 1156, 1160 (4th Cir. 1994) (quoting
United States v. Bianco, 922 F.2d 910, 912 (1st Cir. 1991)).
We have reviewed the material submitted by the parties
and find that it was reasonably foreseeable to Jones that his
co-conspirators would be in possession of dangerous weapons.
See United States v. Lomax, 293 F.3d 701, 706 (4th Cir. 2002).
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Moreover, Jones reasonably should have known that his co-
conspirators were in possession of dangerous weapons as he came
to the drug deal armed with a stun gun. Accordingly, the
district court did not clearly err in applying the USSG
§ 2D1.1(b)(1) enhancement. See USSG § 1B1.3(a)(1)(B).
Finally, Jones contends his sentence is unreasonable.
This court reviews a sentence imposed by a district court under
a deferential abuse of discretion standard. Gall v. United
States, 552 U.S. 38, 51 (2007); United States v. Evans, 526 F.3d
155, 161 (4th Cir. 2008). In reviewing a sentence, the
appellate court must first ensure that the district court
committed no procedural error, such as improperly calculating
the Guidelines range, failing to consider the § 3553(a) factors,
or failing to adequately explain the chosen sentence. Gall,
552 U.S. at 51. If there are no procedural errors, the
appellate court then considers the substantive reasonableness of
the sentence. Id.When rendering a sentence, the district court must
make an individualized assessment based on the facts presented
and state in open court the particular reasons that support its
chosen sentence. United States v. Carter, 564 F.3d 325, 328
(4th Cir. 2009). This requires the district court to set forth
enough to satisfy this court that the district court has a
reasoned basis for its decision and has considered the parties’
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arguments. Id. The district court, however, is not required to
“robotically tick through” every subsection of § 3553(a). See
United States v. Johnson, 445 F.3d 339, 345 (4th Cir. 2006).
When reviewing a sentence on appeal, we presume a sentence
within the properly calculated Guidelines range is reasonable.
United States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007).
Jones claims that his sentence is unreasonable because
of the disparity between his sentence and that of Culver.
Culver, however, unlike Jones, pled guilty and cooperated with
the Government. See United States v. Abu Ali, 528 F.3d 210,
263-64 (4th Cir. 2008), cert. denied, 129 S. Ct. 1312 (2009).
Additionally, Jones maintains the district court failed to
adequately explain its consideration of the 18 U.S.C. § 3553(a)
(2006) factors in fashioning his sentence. The district court
provided a sufficiently detailed explanation for Jones’ sentence
and was not required to exalt form over substance by robotically
ticking through each § 3553(a) factor. Johnson, 445 F.3d at
345. The district court determined that a sentence at the low
end of Jones’ properly calculated Guidelines range was
appropriate and Jones does not overcome the presumption of
reasonableness accorded his within-Guidelines sentence.
Accordingly, we deny Jones’ motion to file a pro se
supplemental brief and affirm the judgments of the district
court. We dispense with oral argument as the facts and legal
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contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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