United States v. Reginald Morton , 443 F. App'x 775 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4810
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
REGINALD DARWIN MORTON, a/k/a Jay, a/k/a Boogie, a/k/a
Jason, a/k/a Novacaine,
Defendant - Appellant.
No. 09-5004
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CHARLES JERMAINE KING, JR., a/k/a Zig-Lah, a/k/a Ziggy,
Defendant - Appellant.
Appeals from the United States District Court for the Western
District of Virginia, at Abingdon. James P. Jones, District
Judge. (1:08-cr-00024-jpj-pms-14; 1:08-cr-00041-jpj-pms-1)
Argued: May 10, 2011 Decided: August 18, 2011
Before NIEMEYER, KING, and KEENAN, Circuit Judges.
Affirmed in part, vacated in part, and remanded for further
proceedings by unpublished per curiam opinion.
ARGUED: Helen Eckert Phillips, MCGLOTHLIN AND PHILLIPS, PLLC,
Lebanon, Virginia; David Samir Saliba, SALIBA & COMPANY, PC,
Wytheville, Virginia, for Appellants. Jennifer R. Bockhorst,
OFFICE OF THE UNITED STATES ATTORNEY, Abingdon, Virginia, for
Appellee. ON BRIEF: Timothy J. Heaphy, United States Attorney,
Roanoke, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Reginald Darwin Morton and Charles Jermaine King, Jr., were
convicted of participation in a drug trafficking conspiracy, in
violation of 21 U.S.C. §§ 841 and 846. By special verdicts, the
jury found Morton guilty of conspiring to distribute or possess
with intent to distribute 50 grams or more of cocaine base and
less than 500 grams of cocaine, and King, the same with respect
to less than 50 but at least 5 grams of cocaine base. The
district court sentenced Morton to 240 months’ imprisonment and
King to 180 months’ imprisonment.
Both defendants appealed, raising numerous issues with
respect to their trial and sentencing. For the reasons that
follow, we affirm their convictions, and, with respect to
Morton’s sentence, we vacate and remand for resentencing, in
light of United States v. Simmons, No. 08-4475, __ F.3d __, __
WL __ (4th Cir. Aug. 17, 2011) (en banc).
I
Morton and King were involved in a large drug trafficking
conspiracy which operated in the Bristol, Virginia area. The
conspiracy was orchestrated in large part by Derrick Evans,
Kerry Lee, Bryant Kelly Pride, and Oedipus Mumphrey, all of whom
were affiliated with Evans’ music label, “Kan’t Stop Records.”
Evans, Lee, Pride, and Mumphrey recruited several other
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participants, including Morton and King, to help sell cocaine
and crack from area hotels, mobile homes, and locations
controlled by Evans.
Morton’s involvement began in April 2006 when he traveled
to Bristol with Mumphrey to sell between 500 and 1,000 grams of
cocaine. Thereafter, Morton continued to sell crack cocaine to
Bristol residents, several of whom testified against him at
trial. The evidence also showed that Morton was present when
Bristol police officers discovered baking soda, a hot plate, and
other equipment used to prepare crack cocaine in a vehicle
belonging to one of Mumphrey’s associates.
King’s involvement was of a similar nature. He purchased
large quantities of crack cocaine from Lee and Pride and then
resold the drugs to third parties. At least six individuals
testified that they bought crack cocaine from King, often on a
recurring basis. One of these individuals executed a controlled
purchase of crack cocaine from King in April 2007, which
ultimately led to King’s arrest and conviction in state court.
Other witnesses linked King to Kan’t Stop Records and several
key members of the conspiracy, including Pride and Mumphrey.
Both defendants were convicted of participating in the
conspiracy. Morton received a 20-year mandatory minimum
sentence under 21 U.S.C. § 841(b)(1)(A), which was a variance
sentence because his offense level of 38 and criminal history of
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VI indicated an advisory Guidelines range of 360 months to life.
The Guidelines recommendation, as well as the mandatory minimum
sentence under § 841(b)(1)(A), depended in part on the fact that
Morton had a prior North Carolina conviction for cocaine
possession, for which he received a suspended sentence of 8 to
10 months’ imprisonment. He objected to use of that conviction
because, he argued, it did not qualify as a “felony drug
offense,” as necessary for the enhancement set forth in
§ 841(b)(1)(A), and the district court overruled his objection.
The court imposed the variance sentence based on its rejection
in part of the 100 to 1 crack-to-powder ratio in effect at the
time.
King was sentenced to 180 months’ imprisonment, to run
concurrently with his imprisonment on state law charges.
This appeal followed.
II
Both Morton and King contend that the district court erred
in refusing to grant their motions to dismiss the indictment,
based on their claims that coconspirator Paul Vaughn gave
perjured testimony before the grand jury to implicate them in
the conspiracy. At the time, Vaughn had agreed to plead guilty
to his involvement in the conspiracy and to cooperate with the
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prosecution by testifying regarding the roles played by others,
including Morton and King.
Initially, Vaughn fulfilled his end of the plea bargain, as
he testified before the grand jury and at two trials, each
involving coconspirators other than Morton and King. But after
he ended up in the same pod at the Roanoke city jail as other
coconspirators, against whom he had testified, he ceased
cooperating. Indeed, he began sending letters to the district
court indicating that he had lied in his grand jury and trial
testimony. He wrote that he “did not know anything” about the
“Kan’t Stop conspiracy,” but “made up stuff” because government
investigators and prosecutors had “threaten[ed] [him] and [his]
family with life imprisonment” if he did not “make up something
on Mumphrey, Morton, and the rest in this case.”
Morton and King argue that Vaughn’s false grand jury
testimony violated their Fifth Amendment right “to stand trial
on an indictment untainted by perjury.”
The district court held several hearings on this issue and
ultimately found that Vaughn had not lied in his original
testimony. The court stated:
Basically, I find that Mr. Vaughn testified truthfully
before the grand jury and in his prior testimony, and
his information originally to the authorities was
truthful, and that what he has testified to today
[seeking to recant his earlier testimony] is
untruthful. He has lied today about his involvement,
and that’s based on my review of the entire record in
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this case, as well as my opportunity to observe Mr.
Vaughn not only today and at prior hearings, but in
his trial testimony. Much of the testimony that he
gives is simply preposterous. It’s incredible on its
face. But there is abundant corroboration of his deep
involvement in this conspiracy.
In a subsequent opinion, the district court elaborated, pointing
out that Vaughn’s grand jury and trial statements were
consistent with a wide range of other evidence, whereas his
post-retraction statements -- including claims that he had
traveled to Bristol not to sell drugs but to meet with recording
artist Ludacris -- were inconsistent, entirely new, and not
believable.
Morton and King have not offered any reason to attribute
clear error to the district court’s factual findings. Moreover,
the petit jury’s guilty verdict, which was not based on any
testimony from Vaughn, as he did not testify at their trial,
rendered “any error in the grand jury proceeding connected with
the charging decision . . . harmless beyond a reasonable doubt.”
United States v. Mechanik, 475 U.S. 66, 70 (1986). Accordingly,
we reject Morton and King’s argument.
III
Morton and King also contend that the district court erred
in denying their motions for a change of venue by transferring
the case from the Abingdon Division to either the Lynchburg
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Division or the Charlottesville Division. They argue that the
Abingdon Division was “inherently prejudicial” because they are
African-Americans and only 2.5% of the population in the
Abingdon Division is African-American. They note that African-
Americans constitute 18% of the population in Lynchburg and 15%
in Charlottesville. The district court denied their motions,
concluding that there was “no evidence at all . . . that there[]
[had] been any intentional discrimination by the Government or
in the process of selection of the jurors” or that “the jury
panels ha[d] not been selected absolutely in accord with law.”
Morton and King have offered no evidence of intentional
discrimination. In making their argument, they rely only on the
dearth of African-Americans in the jury pool. But simple
reliance on such statistics is insufficient, as “[d]efendants
are not entitled to a jury of any particular composition.”
Taylor v. Louisiana, 419 U.S. 522, 538 (1975); see also United
States v. Nelson, 102 F.3d 1344, 1354 (4th Cir. 1996).
Accordingly, we conclude that the district court did not abuse
its discretion in denying the defendants’ motion for a change of
venue.
IV
Morton and King also contend that the district court erred
in denying their motions for judgment of acquittal, based on an
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insufficiency of the evidence. Although Morton and King
acknowledge that they bought drugs from and sold drugs to
members of the conspiracy, they argue that this “buyer-seller
relationship” does not, on its own, amount to participation in
the conspiracy.
The jury found otherwise, and its verdict must be sustained
“if there is substantial evidence, taking the view most
favorable to the Government, to support it.” United States v.
Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc). To prove
conspiracy, the government had to demonstrate, through direct or
circumstantial evidence, that (1) two or more persons agreed to
distribute cocaine; (2) Morton and King knew of the conspiracy;
and (3) they “knowingly and voluntarily became a part of” the
conspiracy. See United States v. Yearwood, 518 F.3d 220, 227
(4th Cir. 2008) (quoting Burgos, 94 F.3d at 857). Based on the
record, we conclude that each of the elements was amply
supported by substantial evidence. Mumphrey testified that
Morton traveled with him to Bristol for the express purpose of
selling cocaine, and several other witnesses corroborated not
only that claim, but also other evidence of Morton’s ongoing
role in the overall drug trafficking operations. Similarly, the
record shows that King was affiliated with Evans’ music label,
Kan’t Stop Records; that he bought crack cocaine from Lee and
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Pride; and that he often sold those drugs from homes controlled
by Evans.
V
Morton challenges his sentencing, arguing (1) that the
special verdicts returned against him and King were inherently
inconsistent and therefore the district court erred in
sentencing him on the higher drug amounts attributed to him by
the jury; and (2) that the district court erred in increasing
his sentence to the mandatory minimum of 20 years based on a
prior state court drug conviction that, he contends, was not a
felony and should not therefore have enhanced his sentence. We
address these arguments seriatim.
A
With respect to the inconsistent verdicts, Morton argues
that the jury, which found both Morton and King guilty based on
the same evidence, attributed 50 grams or more of crack to him
but lower amounts to King and coconspirator Tyson Anderson.
Because the verdicts were inconsistent, he maintains, he should
have received the benefit of the lower attributions.
Morton’s argument, however, is facially unpersuasive. The
fact that a jury imputed greater amounts of drugs to him than to
other members of the conspiracy does not call into question the
validity or the legitimacy of the resulting guilty verdicts but
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only reflects the jury’s view of the evidence. See United
States v. Green, 599 F.3d 360, 369 (4th Cir. 2010) (citing
United States v. Powell, 469 U.S. 57, 64 (1984); Dunn v. United
States, 284 U.S. 390, 393 (1932)). And the fact that the
Sentencing Guidelines treat different drug quantities
differently for purposes of sentencing is irrelevant to Morton’s
guilty verdict.
B
With respect to the district court’s use of his prior North
Carolina state conviction, Morton argues that the conviction was
for a misdemeanor, not a felony, and only a felony could enhance
his sentence under 21 U.S.C. § 841(b)(1)(A). A felony for
purposes of § 841 is defined to be a crime “punishable by
imprisonment for more than one year.” Id. § 802(44). Morton
argues that his prior drug offense was punishable by no more
than 10 months’ imprisonment. See N.C. Gen. Stat. § 15A-
1340.17(c)-(d) (setting out minimum and maximum sentences
applicable under North Carolina’s “structured sentencing”
regime); J.A. 1697 (documenting Morton’s prior conviction).
When Morton raised this argument in the district court, it
was foreclosed by our decision in United States v. Harp, 406
F.3d 242 (4th Cir. 2005). Subsequently, however, we overruled
Harp with our en banc decision in Simmons, where the same
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argument was presented and sustained in favor of the defendant.
See United States v. Simmons, No. 08-4475, __ F.3d __, __ WL __
(4th Cir. Aug. 17, 2011) (en banc). In view of Simmons, we will
likewise sustain Morton’s objection here, vacating his sentence
and remanding the case to the district court for resentencing.
VI
King contends that after the district court found that his
rights under the Interstate Agreement on Detainers (“IAD”) had
been violated, it erred in dismissing the original indictment
against him without prejudice, rather than with prejudice, as he
had requested. The government does not challenge the IAD
violation, as King was serving a state sentence in the Bristol
city jail when he was taken into custody by the United States
Marshal’s Service, brought to federal court, and then returned
to the Bristol city jail. It notes, however, that § 9 of the
IAD Act provides that for a violation, the court can dismiss the
case with or without prejudice, depending on various factors,
such as the seriousness of the offense, the factual
circumstances leading to the IAD violation, and the impact of a
reprosecution on the administration of the agreement on
detainers and on the administration of justice. Taking those
matters into consideration, the district court found, as a
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matter of its discretion, that it was appropriate to dismiss the
original indictment without prejudice.
Travis Dell Jones, one of King’s coconspirators, has
already raised this issue during a different trial, and the
district court decided the issue against him. When considering
the same issue raised by King, the district court adopted its
opinion from Jones’ trial as its reasons for denying King’s
motion. When Jones appealed the district court’s ruling, we
affirmed. See United States v. Jones, 367 Fed. Appx. 482 (4th
Cir. 2010). For the same reasons, we now reject King’s argument
here.
VII
Finally, King asserts that the district court erred in
admitting evidence that he had sold cocaine to an undercover
informant on two separate occasions and that he had pleaded
guilty to state charges in each instance. He argues that this
evidence was used to prove that he acted in conformity with his
allegedly bad character and that it should have been excluded
under Federal Rule of Evidence 404(b).
We find this argument to be without merit because the
evidence admitted was intrinsic to the conspiracy involved in
this case. Evidence of a defendant’s criminal conduct is
“intrinsic” when it is “inextricably intertwined” with conduct
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that has been charged, or “part of a single criminal episode.”
United States v. Chin, 83 F.3d 83, 88 (4th Cir. 1996) (quoting
United States v. Lambert, 995 F.2d 1006, 1007 (10th Cir. 1993)).
Because the evidence of the two transactions was within the
scope of the conspiracy charged, Rule 404(b) was irrelevant.
See Chin, 83 F.3d at 88.
* * *
For the reasons given, we affirm Morton’s conviction,
vacate his sentence, and remand for resentencing in accordance
with Simmons. With respect to the issues raised by King, we
affirm.
AFFIRMED IN PART, VACATED IN PART,
AND REMANDED FOR FURTHER PROCEEDINGS
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