United States v. Bowens , 425 F. App'x 205 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4187
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SAMUEL JUVON BOWENS,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, District Judge. (5:07-cr-00050-RLV-DSC-14)
Submitted: April 14, 2011 Decided: April 28, 2011
Before WILKINSON and NIEMEYER, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Denzil H. Forrester, Charlotte, North Carolina, for Appellant.
Anne M. Tompkins, United States Attorney, Amy E. Ray, Assistant
United States Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Samuel Juvon Bowens appeals his conviction after a
jury trial and 324-month sentence for one count of conspiracy to
possess with intent to distribute a quantity of cocaine and
cocaine base in violation of 21 U.S.C. §§ 841(b)(1)(A), 846, 851
(2006) and three counts of possession with intent to distribute
a quantity of cocaine base and aiding and abetting in violation
of 21 U.S.C. § 841(a)(1), (b)(1)(B), 18 U.S.C. § 2 (2006). We
affirm.
Bowens raises four claims of error on appeal: (1) his
conviction was based on insufficient evidence; (2) the district
court impermissibly limited the scope of his cross-examination
of a government witness; (3) the court erred in overruling his
challenge to a sentence enhancement pursuant to 21 U.S.C. § 841;
and (4) the district court miscalculated the amount of drugs
accountable to him. For the reasons that follow, we reject each
claim.
I. Sufficiency of the Evidence
Bowens does not contest the sufficiency of the
evidence forming the basis of his convictions for possession
with intent to distribute cocaine base. Rather, he argues that
the Government did not meet its burden to show that he was
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engaged in a conspiracy to possess with intent to distribute
cocaine and cocaine base.
“A defendant challenging the sufficiency of the
evidence faces a heavy burden.” United States v. Foster, 507
F.3d 233, 245 (4th Cir. 2007). 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). We review both direct and
circumstantial evidence, and accord the government all
reasonable inferences from the facts shown to those sought to be
established. United States v. Harvey, 532 F.3d 326, 333
(4th Cir. 2008). In reviewing for sufficiency of the evidence,
we do not review the credibility of the witnesses, and assume
that the jury resolved all contradictions in the testimony in
favor of the government. United States v. Kelly, 510 F.3d 433,
440 (4th Cir. 2007). We will uphold the jury’s verdict if
substantial evidence supports it, and will reverse only in those
rare cases of clear failure by the prosecution. Foster, 507
F.3d at 244-45.
Because this case involved a conspiracy charge under
21 U.S.C. § 846, the Government was required to prove (1) an
agreement between Bowens and another person to engage in conduct
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that violated a federal drug law; (2) Bowens’s knowledge of the
conspiracy; and (3) Bowens’s knowing and voluntary participation
in the conspiracy. United States v. Strickland, 245 F.3d 368,
384-85 (4th Cir. 2001). Since a conspiracy is by its nature
clandestine and covert, it is generally proved by circumstantial
evidence. United States v. Burgos, 94 F.3d 849, 857
(4th Cir. 1996) (en banc). Evidence tending to prove a
conspiracy may include a defendant’s relationship with other
members of the conspiracy, and the existence of a conspiracy may
be inferred from a development and collocation of circumstances.
Id. at 858. “Circumstantial evidence sufficient to support a
conspiracy conviction need not exclude every reasonable
hypothesis of innocence, provided the summation of the evidence
permits a conclusion of guilt beyond a reasonable doubt.” Id.(citation omitted).
It is unnecessary that the conspiracy have a
“discrete, identifiable organizational structure.” United
States v. Banks, 10 F.3d 1044, 1054 (4th Cir. 1993). An
important consideration is “whether the actor demonstrated a
substantial level of commitment to the conspiracy, for example
by engaging in a consistent series of smaller transactions that
furthered its ultimate object of supplying the consumer demand
of the market.” Id. (citation and internal quotation marks and
brackets omitted).
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We have reviewed the record, and conclude that
sufficient evidence supports Bowens’s conspiracy conviction.
While Bowens is correct that there was no direct evidence of a
formal, structured drug enterprise, numerous witnesses testified
that they purchased large quantities of cocaine base from
Bowens, while others testified to selling large quantities of
powder cocaine and cocaine base to Bowens. The volume of
narcotics Bowens transacted clearly implies an effort to
“further [his] object of supplying the consumer demand of the
market” thereby satisfying the elements of a conspiracy charge.
See id.Bowens devotes much of his brief to attacking the
credibility of the witnesses against him, as many were indicted
as co-conspirators. It is axiomatic, of course, that we do not
review the credibility of the witnesses. Kelly, 510 F.3d at
440.
II. Scope of Cross-Examination
Bowens next argues that the district court improperly
limited the scope of his cross-examination of Dr. Hacene
Boudries, an expert witness for the Government. Boudries, an
analytic chemist, testified about the functionality of the GE
Itemiser 3, a device that, in this case, identified traces of
cocaine on currency that was taken from Bowens’s person at the
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time of his arrest. Boudries testified that if used properly,
the Itemiser 3 would only produce a “false alarm” in two percent
of cases or less. During cross-examination, Bowens sought to
have Boudries characterize the machine’s results as “opinions”
or “fact.” The following exchange took place:
Q. . . . Let me ask you, any of these test or
results performed by the itemiser 3, are they fact?
The conclusion, is that a fact?
A. [Y]eah, the results are – it’s telling you with a
high level of confidence that something – a drug has
been detected . . . You can look at the level or the
intensity of the peak. That’s what it is. I mean,
it’s an analytical tool that results.
Q. But that’s a high level opinion, isn’t’ it, sir?
A. Sorry? Can you repeat your question, please.
Q. Your answer was the test results are considered
fact, right?
THE COURT: That’s argumentative, counselor. You
may move on to something else.
Q. Does a fact ever have less than a two percent
failure rate?
THE COURT: Same ruling.
Q. Is it a fact that Charles deGualle [sic] is dead?
THE COURT: Same ruling.
MR. FORRESTER [defense counsel]: No further questions.
Bowens challenges the court’s actions on appeal.
Because he did not object to, or otherwise challenge the court’s
decision in the district court, our review is for plain error.
United States v. Olano, 507 U.S. 725, 732-35 (1993). “To
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establish plain error, [Bowens] must show that an error
occurred, that the error was plain, and that the error affected
his substantial rights.” United States v. Muhammad, 478 F.3d
247, 249 (4th Cir. 2007). Even if Bowens satisfies these
requirements, “correction of the error remains within [the
Court’s] discretion, which [the Court] should not exercise . . .
unless the error seriously affect[s] the fairness, integrity or
public reputation of judicial proceedings.” Id. (internal
quotation marks and citation omitted).
A defendant has the right to ‛a
have “ meaningful
opportunity to present a complete defense.’” United States v.
Smith, 451 F.3d, 209, 221 (4th Cir. 2006) (quoting United
States v. Scheffer, 523 U.S. 303, 329 (1998)). Accordingly,
“the right of cross examination is a precious one, essential to
a fair trial,” and the defendant should be given “a reasonable
opportunity to conduct cross-examination that might undermine a
witness’s testimony.” Id. (internal quotation marks omitted).
However, the district court may “impose reasonable limits on
cross-examination, [based] on such concerns as prejudice,
confusion, repetition, and relevance.” Id.Based on our review of the record, we do not conclude
that the district court plainly erred. Bowens’s line of cross-
examination had been explored thoroughly. Boudries acknowledged
an error rate of two percent even in a properly administered
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test; Bowens effort to have Boudries characterize this outcome
was argumentative at best and invaded the province of the jury
at worst. Moreover, Bowens could have changed his line of
questioning to emphasize the incidence of false positive
outcomes, but chose instead to end his examination. We cannot
conclude, on these facts, that the district court erred, much
less plainly so.
III. Sentencing Enhancement
Bowens next claims that the district court erred in
overruling his objection to the § 841 enhancement because the
underlying state felony conviction was not a proper predicate
for the purposes of § 841. He was convicted in 2003 in North
Carolina court of felony possession of cocaine.
21 U.S.C. § 841(b)(1)(A) imposes a ten year mandatory
minimum sentence for violations of § 841(a) if the defendant
violates § 841(a) “after a prior conviction for a felony drug
offense has become final.” 21 U.S.C. § 841(b)(1)(A). Whether a
district court properly interpreted the term “felony drug
offense” in § 841(b)(1)(A) “involves a pure question of law,”
which we review de novo. United States v. Burgess, 478 F.3d
658, 661 (4th Cir. 2007).
Section 841 does not define the term “felony drug
offense,” but 21 U.S.C. § 802(44) (2006) does, “in plain and
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unambiguous terms.” Id. at 662. Section 802(44) defines felony
drug offense as “an offense that is punishable by imprisonment
for more than one year under any law of the United States or of
a State or foreign country that prohibits or restricts conduct
relating to narcotic drugs, marihuana, anabolic steroids, or
depressant or stimulant substances.” 21 U.S.C. § 802(44). This
court has held that “because the term ‘felony drug offense’ is
specifically defined in § 802(44), and § 841(b)(1)(A) makes use
of that precise term, the logical, commonsense way to interpret
‘felony drug offense’ in § 841(b)(1)(A) is by reference to the
definition in § 802(44).” Burgess, 478 F.3d at 662 (internal
quotation marks and alterations omitted).
Bowens does not argue that his 2003 North Carolina
conviction for felony possession of cocaine was not punishable
by more than one year’s imprisonment or that it was unrelated to
narcotics. Rather, he argues that the Supreme Court’s decision
in Lopez v. Gonzalez, 549 U.S. 47 (2006) implicitly abrogated
§ 802(44). In Lopez, the Supreme Court held that conduct that
is a felony under state law but a misdemeanor under the
Controlled Substances Act does not qualify as a “felony
punishable under the Controlled Substances Act” sufficient to be
considered an aggravated felony for purposes of the Immigration
and Nationality Act. Lopez, 549 U.S. at 50.
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We conclude that Bowens’s reliance on Lopez is
misplaced. Lopez involved a matter of statutory interpretation
where Congress was silent, i.e., the issue of whether certain
state felonies are also aggravated felonies under the Controlled
Substance Act. See Lopez, 549 U.S. at 54 (“Congress can define
an aggravated felony . . . in an unexpected way. But Congress
would need to tell us so[.]”).
Here, Congress has clearly willed that a “felony drug
offense” is one that is “punishable by imprisonment for more
than one year under any law of the United States or of a
State[.]” 21 U.S.C. § 802(44) (emphasis added). Because
Bowens’s 2003 conviction was for a felony drug offense, the
district court did not err in overruling Bowens’s objection to
the § 841 enhancement.
IV. Drug Amount Calculation
Finally, Bowens argues that the district court erred
in finding that he was responsible for over 3.5 kilograms of
powder cocaine and over three kilograms of cocaine base. This
court reviews a drug quantity finding for clear error. United
States v. Kellam, 568 F.3d 125, 147 (4th Cir. 2009). Under the
clear error standard of review, we will reverse only if “left
with the definite and firm conviction that a mistake has been
committed.” United States v. Jeffers, 570 F.3d 557, 570
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(4th Cir. 2009) (internal quotation marks and citation omitted).
At sentencing, the government need only establish the amount of
drugs involved by a preponderance of the evidence. United
States v. Brooks, 524 F.3d 549, 561-62 (4th Cir. 2008). “Where
there is no drug seizure or the amount seized does not reflect
the scale of the offense, the court shall approximate the
quantity of the controlled substance.” U.S. Sentencing
Guidelines Manual § 2D1.1, comment. (n.12) (2009).
We conclude the district court did not err. While
Bowens contests the veracity of witness testimony against him,
that testimony is sufficient to form the basis for the drug
amount attributed to Bowens. Again, this court will not revisit
questions of witness credibility.
We therefore affirm the judgment of the district
court. We dispense with oral argument because the facts and
legal contentions are adequately addressed in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
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