United States v. Wimbush , 204 F. App'x 288 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4337
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ERIC ANTHONY WIMBUSH, a/k/a E from DC,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L. Voorhees,
District Judge. (CR-02-37)
Submitted: September 20, 2006 Decided: October 27, 2006
Before WILKINSON, TRAXLER, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Walter H. Paramore, III, WALTER H. PARAMORE, III, P.C.,
Jacksonville, North Carolina, for Appellant. Matthew Theodore
Martens, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
A jury convicted Eric Anthony Wimbush of conspiracy to
possess with intent to distribute fifty grams or more of cocaine
base, in violation of 21 U.S.C. § 846 (2000). Wimbush was
sentenced to 360 months in prison. He now appeals his conviction
and sentence. His attorney has filed a brief in accordance with
Anders v. California, 386 U.S. 738 (1967), raising three claims but
stating that there are no meritorious grounds for appeal. Wimbush
has also filed pro se supplemental briefs. We affirm.
Wimbush first claims that the district court erred when
it denied his Fed. R. Crim. P. 29 motion for judgment of acquittal.
We review de novo the denial of a Rule 29 motion. United States v.
Uzenski, 434 F.3d 690, 700 (4th Cir. 2006). Further:
In assessing the sufficiency of evidence, we must
determine whether the jury verdict is sustained by
substantial evidence, taking the view most favorable to
the Government. . . . This inquiry rests on whether any
rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. . . .
Credibility determinations fall within the sole province
of the jury, to the extent that we assume the jury
resolved all contradictions in the testimony in favor of
the government.
Id. (internal citations and quotation marks omitted).
The essential elements of the charged conspiracy are:
(1) the existence of an agreement between two or more persons to
distribute fifty grams or more of cocaine base; (2) the defendant’s
knowledge of the conspiracy; and (3) the defendant’s knowingly and
voluntarily joining the conspiracy. See United States v. Burgos,
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94 F.3d 849, 857 (4th Cir. 1996) (en banc). Because “the focus of
a conspiracy charge is the agreement to violate the law, not
whether the conspirators have worked out the details of their
confederated criminal undertakings,” the government need not prove
that a defendant knew all the details of the conspiracy. United
States v. Mills, 995 F.2d 480, 484 (4th Cir. 1993); see also
Burgos, 94 F.3d at 858. Moreover, “[k]nowledge and participation
in the conspiracy may be proved by circumstantial evidence.”
United States v. Meredith, 824 F.2d 1418, 1428 (4th Cir. 1987).
The evidence presented at trial established that John
Romero, a large-scale distributor of cocaine base in the Ridgeview
area of Hickory, North Carolina, distributed significant quantities
of the drug to Wimbush and other mid-level dealers, including Kevin
Linder and Darren Izard. Wimbush and these mid-level dealers, in
turn, distributed quantities of cocaine to lower-level dealers.
Wimbush and others at his level did not consider each other to be
competitors; rather, they maintained a cordial relationship and
routinely obtained supplies of cocaine base from one another when
Romero and other distributors were unable to provide the needed
quantities. For instance, Damien Liles, another drug dealer,
testified that he purchased approximately thirty ounces of cocaine
base from Wimbush between 1998 and 2000, buying between one and two
ounces at a time. Wimbush, in turn, purchased approximately twenty
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ounces of cocaine from Liles during this time. We conclude that
the evidence was sufficient to sustain the conspiracy conviction.1
Next, Wimbush contends that the district court erred when
it granted the Government’s motion in limine to exclude evidence
that one of his coconspirators had been acquitted of the conspiracy
charge. However, the acquittal of a non-testifying coconspirator
is not generally admissible at trial. United States v. Sanders, 95
F.3d 449, 454 (6th Cir. 1996). The district court did not abuse
its discretion in refusing evidence of the acquittal to be
presented.
1
In his pro se briefs, Wimbush contends that the Government
failed to establish that the conspiracy dealt in cocaine base, as
opposed to powder cocaine. The overwhelming evidence was that the
conspirators trafficked in cocaine base.
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Finally, Wimbush challenges his 360-month sentence.2 At
sentencing, the district court concluded, based on a preponderance
of the evidence, that Wimbush was responsible for 700 grams of
cocaine base. The court accordingly assigned a base offense level
of 36. See U.S. Sentencing Guidelines Manual § 2D1.1(c)(2) (2004).
Further, the court found that a preponderance of the evidence
supported a two-level enhancement for possession of a firearm, see
USSG § 2D1.1(b)(1), and a two-level increase for Wimbush’s
aggravated role in the offense, see USSG § 3B1.1(c). Wimbush’s
total offense level was 40, and his criminal history category was
III, for a guideline range of 360 months to life. In sentencing
Wimbush, the court took note of this advisory guideline range and
2
Wimbush raises two other claims in his pro se brief. First,
he asserts that defense counsel had a conflict of interest because
he was under consideration for elevation to the bench. We note
that nothing in the record shows that defense counsel in fact was
being considered for a judicial appointment. At any rate, Wimbush
does not demonstrate how this alleged conflict prejudiced his
defense; indeed, he only speculates that the conflict impacted
counsel’s performance. This claim is essentially one of
ineffective assistance of counsel. Because ineffectiveness does
not conclusively appear on the face of the record, Wimbush should
raise the claim, if at all, in a motion filed pursuant to 28 U.S.C.
§ 2255 (2000). See United States v. Richardson, 195 F.3d 192, 198
(4th Cir. 1999). Second, Wimbush contends that a gun and marijuana
were seized in violation of the Fourth Amendment and should not
have been admitted into evidence. We note that these items were
seized from his bedroom at the time of his arrest, which occurred
after issuance of the indictment in this case. Further, Wimbush
informed officers when he was arrested that the gun and marijuana
were in the room. There was no Fourth Amendment violation.
Finally, even without this evidence, there was more than enough
evidence presented at trial to convict Wimbush.
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specifically mentioned several of the sentencing factors set forth
at 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2006).
After United States v. Booker, 543 U.S. 220 (2005), a
sentence must be “within the statutorily prescribed range and . . .
reasonable.” United States v. Hughes, 401 F.3d 540, 546-47 (4th
Cir. 2005) (citations omitted). “[A] sentence within the properly
calculated Guidelines range . . . is presumptively reasonable.”
United States v. Green, 436 F.3d 449, 457 (4th Cir.), cert. denied,
126 S. Ct. 2309 (2006).
Here, the 360-month sentence falls within the applicable
statutory range of ten years to life in prison. See 21 U.S.C.
§ 841(b)(1)(A) (2000). Moreover, the advisory guideline range was
correctly calculated. We note that the district court’s use of the
preponderance of the evidence standard in calculating that range
was appropriate and not violative of the Sixth Amendment. See
United States v. Morris, 429 F.3d 65, 72 (4th Cir. 2005); see also
United States v. Dalton, 409 F.3d 1247, 1252 (10th Cir. 2005).
Furthermore, the trial testimony supports the court’s findings that
Wimbush was responsible for at least 700 grams of cocaine base,
possessed a firearm in furtherance of the conspiracy, and played an
aggravating role in the offense, and the court did not clearly err
in making these various findings. See United States v. Lamarr, 75
F.3d 964, 972 (4th Cir. 1996).
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In accordance with Anders, we have reviewed the entire
record for any meritorious issues and have found none.
Accordingly, we affirm. This court requires counsel to inform his
client, in writing, of his right to petition the Supreme Court of
the United States for further review. If the client requests that
a petition be filed, but counsel believes that such a petition
would be frivolous, then counsel may move this court for leave to
withdraw from representation. Counsel’s motion must state that a
copy of the motion was served on the client. We dispense with oral
argument because the facts and legal contentions are adequately set
forth in the materials before the court and argument would not aid
the decisional process.
AFFIRMED
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