United States v. Goff , 404 F. App'x 768 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4876
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
CHERYL L. GOFF,
Defendant – Appellant.
No. 09-4883
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
STEVEN C. GREEN,
Defendant – Appellant.
Appeals from the United States District Court for the Northern
District of West Virginia, at Clarksburg. Irene M. Keeley,
District Judge. (1:09-cr-00021-IMK-2; 1:09-cr-00021-IMK-1)
Submitted: November 3, 2010 Decided: December 10, 2010
Before SHEDD, KEENAN, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
William L. Pennington, Morgantown, West Virginia; Jacob A.
Manning, DINSMORE & SHOHL, LLP, Wheeling, West Virginia, for
Appellants. Betsy C. Jividen, Acting United States Attorney,
Andrew R. Cogar, Assistant United States Attorney, Clarksburg,
West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
A jury convicted Cheryl L. Goff and Steven C. Green of
one count each of conspiracy to possess with the intent to
distribute more than five grams of cocaine base, in violation of
21 U.S.C. § 846 (2006), and Goff of one count of maintaining a
drug-involved premises, in violation of 21 U.S.C. § 856(a)(1)
(2006). The district court sentenced Green to 97 months’
imprisonment and Goff to 262 months’ imprisonment on the
conspiracy count and a concurrent term of 240 months’
imprisonment on the maintaining count. On appeal, Goff
maintains that the evidence is insufficient to support her
convictions and that the district court abused its discretion in
imposing sentence. Green maintains that the district court
abused its discretion in denying his motions for a mistrial and
for a new trial and in admitting Goff’s statements against him.
We affirm.
“A defendant challenging the sufficiency of the
evidence to support [her] conviction[s] bears a heavy burden.”
United States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997)
(internal quotation marks omitted). We will uphold the jury’s
verdict “if, viewing the evidence in the light most favorable to
the [G]overnment, it is supported by substantial evidence.”
United States v. Reid, 523 F.3d 310, 317 (4th Cir. 2008).
“Substantial evidence is evidence that a reasonable finder of
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fact could accept as adequate and sufficient to support a
conclusion of a defendant's guilt beyond a reasonable doubt.”
Id. (internal quotation marks omitted). In reviewing for
substantial evidence, we consider both circumstantial and direct
evidence and allow 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). We do not
weigh evidence or review witness credibility. United States v.
Wilson, 118 F.3d 228, 234 (4th Cir. 1997). Rather, it is the
role of the jury to judge the credibility of witnesses, resolve
conflicts in testimony, and weigh the evidence. United
States v. Manbeck, 744 F.2d 360, 392 (4th Cir. 1984).
The offense of maintaining a drug-involved premises
under 21 U.S.C. § 856(a) requires proof that the defendant
(1) knowingly (2) opened, leased, rented, or maintained any
place (3) for the purpose of manufacturing, distributing, or
using any controlled substance. See 21 U.S.C. § 856(a)(1);
United States v. Russell, 595 F.3d 633, 642 (6th Cir.), cert.
denied, ___ S. Ct. ___, No. 09-11002, 2010 WL 2102243(Oct. 4, 2010); United States v. Verners, 53 F.3d 291, 295
(10th Cir. 1995); United States v. Onick, 889 F.2d 1425, 1431
(5th Cir. 1989). Goff contends that the evidence is
insufficient to support her conviction for the maintaining count
because the Government’s key witness was unbelievable. We
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reject this challenge because witness credibility is not subject
to appellate review, Wilson, 118 F.3d at 234, and, as evidenced
by its finding of guilt, the jury resolved any conflicts in
testimony in favor of the Government and determined the
Government’s witnesses to be sufficiently credible, see Manbeck,
744 F.2d at 392. Additionally, after review of the record, we
conclude there was sufficient evidence from which a jury could
find beyond a reasonable doubt that Goff maintained a residence
for the purpose of distributing cocaine base. Further, because
the evidence is sufficient to support Goff’s conviction on the
maintaining count, we reject her challenge to the sufficiency of
the evidence supporting the conspiracy count, a challenge
premised on the argument that the evidence is insufficient to
support her conviction on the maintaining count.
Goff also challenges her sentence, asserting three
grounds for vacatur: first, that the district court treated the
Sentencing Guidelines as presumptively reasonable; second, that
the court failed to adequately explain its rationale for
imposing sentence; and third, that the sentence is substantively
unreasonable. We review the district court’s sentence under a
“deferential abuse-of-discretion standard.” Gall v. United
States, 552 U.S. 38, 41 (2007). This review entails appellate
consideration of both the procedural and substantive
reasonableness of the sentence. Id. at 51.
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In determining procedural reasonableness, we first
assess whether the district court properly calculated the
defendant’s Guidelines range. Id. at 49, 51. We must then
consider whether the district court treated the Guidelines as
mandatory, failed to consider the 18 U.S.C. § 3553(a) (2006)
factors and any arguments presented by the parties, selected a
sentence based on “clearly erroneous facts,” or failed to
explain sufficiently the selected sentence. Id. at 50-51;
United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). We
also review whether the district court made “an individualized
assessment based on the facts presented.” Gall, 552 U.S. at 50;
see United States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009)
(holding that, while the “individualized assessment need not be
elaborate or lengthy, . . . it must provide a rationale tailored
to the particular case . . . and [be] adequate to permit
meaningful appellate review” (internal quotation marks
omitted)).
When reviewing for substantive reasonableness, we take
into account the “totality of the circumstances.” Gall,
552 U.S. at 51. We accord a sentence within a properly-
calculated Guidelines range an appellate presumption of
reasonableness. See United States v. Abu Ali, 528 F.3d 210, 261
(4th Cir. 2008). Such a presumption is rebutted only by showing
“that the sentence is unreasonable when measured against the
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[18 U.S.C.] § 3553(a) factors.” United States v. Montes-Pineda,
445 F.3d 375, 379 (4th Cir. 2006) (internal quotation marks
omitted).
In this case, the district court properly calculated
Goff’s sentencing ranges under the U.S. Sentencing Guidelines
Manual (2008), and no record evidence supports Goff’s assertion
that the court treated those ranges as mandatory. In explaining
its decision to impose the concurrent, within-Guidelines
sentences of 262 and 240 months’ imprisonment, the court stated
that it had considered the 18 U.S.C. § 3553(a) sentencing
factors and the arguments of Goff’s counsel concerning Goff’s
resolve to spend time with her family and whether the imposition
of a within-Guidelines sentence would be greater than necessary
to achieve the purposes of sentencing. The court also addressed
Goff’s history and characteristics, the nature and circumstances
of her offense, and the need for the sentence to provide just
punishment for Goff, afford adequate deterrence, and protect the
public. The respective sentences fall within the properly-
calculated Guidelines ranges, and Goff fails to overcome the
appellate presumption of reasonableness this court affords to
these sentences. Accordingly, we conclude that the district
court did not abuse its discretion in sentencing Goff.
Turning to Green’s challenges, he maintains that the
district court erred by denying his motion for a mistrial based
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on the untimely disclosure of the Government’s fingerprint
analysis of a package of cocaine base. According to Green, his
theory of the defense was that the Government was not thorough
in its investigation, and trial counsel highlighted this fact by
eliciting from the Government’s case agent that investigators
had the ability to perform a fingerprint analysis and that, if
such an analysis had showed that the fingerprints of a
co-conspirator were present on the package, such analysis would
negate the co-conspirator’s testimony that Green was always in
possession of the conspiracy’s supply of cocaine base. Thus,
Green asserts that counsel’s credibility was damaged when the
Government elicited from the case agent that a fingerprint
analysis of the package had been performed.
We review the denial of a motion for a mistrial for
abuse of discretion. United States v. Dorlouis, 107 F.3d 248,
257 (4th Cir. 1997) (stating that “denial of a defendant's
motion for a mistrial is within the sound discretion of the
district court and will be disturbed only under the most
extraordinary of circumstances”). “In order for the trial
court’s ruling to constitute such an abuse of discretion, the
defendant must show prejudice.” United States v. Dorsey,
45 F.3d 809, 817 (4th Cir. 1995). Reversal is required only if
there is a clear abuse of discretion and a “reasonable
possibility that the jury's verdict was influenced” by the
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error. United States v. Seeright, 978 F.2d 842, 849 (4th Cir.
1992) (internal quotation marks omitted). Because our review of
the record reveals that Green cannot show any prejudice from the
untimely production of the fingerprint analysis, this claim
fails.
Next, Green challenges under Bruton v. United States,
391 U.S. 123 (1968), the admission of the statements of Goff —
who did not testify at their joint trial — that she knew Green
and other co-conspirators and smoked cocaine base the night
before they were arrested. Green contends that, although the
statements, standing alone, were not incriminating, they
implicated him in the conspiracy when viewed in light of other
evidence presented at trial. Because Green did not object in
the district court to the admission of these statements, our
review is for plain error, which exists when clear or obvious
error affects the defendant’s substantial rights. See United
States v. Massenburg, 564 F.3d 337, 342-43 (4th Cir. 2009).
In Bruton, the Supreme Court held that a criminal
defendant’s Sixth Amendment right to cross-examine witnesses
against him is violated when a non-testifying co-defendant’s
out-of-court statement is admitted at their joint trial to
inculpate the defendant. See Bruton, 391 U.S. at 126. However,
a “Bruton problem exists only to the extent that the
codefendant’s statement in question, on its face, implicates the
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defendant.” United States v. Locklear, 24 F.3d 641, 646
(4th Cir. 1994). Additionally, a statement that is not facially
incriminating is admissible, even if it is incriminating when
linked with other evidence introduced. See Richardson v. Marsh,
481 U.S. 200, 208-11 (1987). Because the challenged statements
were not facially incriminating to Green, their admission did
not violate Bruton. Green therefore fails to show plain error.
Finally, Green contends that the district court erred
in denying his Fed. R. Crim. P. 33 motion for a new trial. We
review a district court’s denial of a motion for a new trial
under Rule 33 for abuse of discretion. United States v.
Fulcher, 250 F.3d 244, 249 (4th Cir. 2001). To warrant a new
trial based on newly-discovered evidence, a defendant must
demonstrate that: (1) the evidence is newly-discovered; (2) he
has been diligent in uncovering it; (3) the evidence is not
merely cumulative or impeaching; (4) the evidence is material to
the issues involved; and (5) the evidence would probably produce
an acquittal. See id. Unless the defendant demonstrates all
five of these factors, the motion should be denied. United
States v. Chavis, 880 F.2d 788, 793 (4th Cir. 1989).
Here, the evidence that formed the basis of Green’s
motion for a new trial — the cellular telephone records of one
of Green’s co-conspirators — was not newly-discovered, as it was
available to Green prior to and during trial. Moreover, because
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Green’s conviction was supported by evidence other than the
testimony of this co-conspirator, we conclude that this is not
one of the “exceptional rare case[s]” where a new trial is
warranted on the basis of impeachment evidence. See United
States v. Custis, 988 F.2d 1355, 1359 (4th Cir. 1993) (internal
quotation marks omitted).
We therefore affirm the district court’s judgments.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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