United States v. Roussos ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4549
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
THEODORUS ANDREAS ROUSSOS,
Defendant - Appellant.
No. 05-4574
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
EUGENE OGLESBY,
Defendant - Appellant.
Appeals from the United States District Court for the District of
South Carolina, at Greenville. Henry F. Floyd, District Judge.
(CR-04-407)
Submitted: June 28, 2006 Decided: July 26, 2006
Before WILKINSON and NIEMEYER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Beattie B. Ashmore, PRICE, PASCHAL & ASHMORE, P.A., Greenville,
South Carolina; Cameron G. Boggs, BOGGS LAW FIRM, Greenville, South
Carolina, for Appellants. Reginald I. Lloyd, United States
Attorney, Regan A. Pendleton, Assistant United States Attorney,
Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
Theodorus Roussos (Appeal No. 05-4549) and Eugene Oglesby
(Appeal No. 05-4574) appeal their convictions and sentences for
conspiracy to manufacture, possession with intent to distribute,
and distribution of fifty grams or more of methamphetamine and 500
grams or more of a mixture or substance containing a detectable
amount of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(A), 846 (2000). Roussos was sentenced to 360 months’
imprisonment; Oglesby was sentenced to 235 months’ imprisonment.
The Appellants first contend the district court abused
its discretion when it admitted photographic evidence of a forensic
analyst, dressed in a hazardous materials suit and holding vials of
liquid seized from the conspirators’ methamphetamine laboratory.
The Appellants claimed the photographs were unduly prejudicial,
communicating the existence of a danger to the community that could
potentially influence the jury. The Government averred the
photographs--the only ones depicting the particular liquid--had
significant probative value, because they were part of the
Government’s foundation for the admissibility of the liquid. The
district court found that, under Fed. R. Evid. 403, the probative
value of the photographs outweighed their prejudicial effect and,
therefore, admitted the photographs.
A district court’s evidentiary rulings are entitled to
substantial deference and will not be reversed absent a clear abuse
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of discretion. That discretion is abused only when the district
court acted arbitrarily or irrationally. See United States v.
Moore, 27 F.3d 969, 974 (4th Cir. 1994). After a careful review of
the record, we find the district court did not abuse its discretion
in this instance.
Next, Oglesby* asserts the district court erroneously
admitted testimony concerning a separate methamphetamine conspiracy
and consequently prejudiced his defense. However, the testimony
was not “unrelated to the overall conspiracy charged in the
indictment,” United States v. Squillacote, 221 F.3d 542, 574 (4th
Cir. 2000), and accordingly there was no risk the jury was likely
to transfer evidence from an unrelated conspiracy to the charged
conspiracy. See id. at 574-75. Thus, we find the district court
committed no error.
Finally, the Appellants contend the district court
imposed sentences in violation of United States v. Booker, 543 U.S.
220 (2005), and United States v. Hughes, 401 F.3d 540 (4th Cir.
2005). After Booker, a sentencing court is no longer bound by the
range prescribed by the sentencing guidelines. United States v.
Green, 436 F.3d 449, 455-56 (4th Cir.), cert. denied, 126 S. Ct.
2309 (2006); Hughes, 401 F.3d at 546. In determining the sentence,
however, courts are still required to calculate and consider the
*
While Roussos joined in this argument before the district
court, only Oglesby is identified in the appellate brief as
pursuing this argument on appeal.
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guidelines range, as well as the factors set forth in 18 U.S.C.A.
§ 3553(a) (West 2000 & Supp. 2005). Id. In sentencing defendants
after Booker, district courts should apply a preponderance of the
evidence standard, taking into account that the resulting guideline
range is advisory only. United States v. Morris, 429 F.3d 65, 72
(4th Cir. 2005) (internal quotation marks and citation omitted).
We will affirm a post-Booker sentence if it is within the
statutorily prescribed range and is reasonable. Hughes, 401 F.3d
at 546-47.
Here, the district court correctly calculated the
Appellants’ ranges under the now-advisory sentencing guidelines
using a preponderance of the evidence standard. After giving due
consideration to the § 3553(a) factors, the district court then
sentenced the Appellants within the statutorily prescribed range
for their offenses and within the ranges provided for by the
sentencing guidelines. Neither Roussos nor Oglesby has rebutted
the presumption that the district court imposed a reasonable
sentence.
Accordingly, we affirm the judgments of the district
court. 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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