United States v. Brown , 333 F. App'x 743 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4313
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ERIC DEWAUN BROWN, a/k/a Blaze, a/k/a Doughboy,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
Senior District Judge. (1:06-cr-00317-NCT)
Submitted: May 28, 2009 Decided: June 19, 2009
Before NIEMEYER, GREGORY, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
John Clark Fischer, RANDOLPH & FISCHER, Winston-Salem, North
Carolina, for Appellant. Angela Hewlett Miller, Assistant
United States Attorney, Greensboro, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Following a jury trial, Eric Dewaun Brown was
convicted of two counts of distribution of cocaine base, in
violation of 21 U.S.C. § 841 (2006). Brown was sentenced to 121
months imprisonment. Counsel filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), in which he asserts
there are no meritorious issues for appeal but questions whether
the indictment properly alleged the offenses and whether the
evidence was sufficient to support the convictions. Brown was
notified of his right to file a pro se supplemental brief, in
response to which he filed two affidavits of additional evidence
refuting his identity as the person who distributed the crack
cocaine. The Government elected not to file a responsive brief.
Finding no error, we affirm.
Counsel first questions whether the indictment
properly alleged the offenses of which Brown was charged.
Because this claim is raised for the first time on appeal, we
review the sufficiency of the indictment for plain error. See
United States v. Cotton, 535 U.S. 625, 631 (2002). An
indictment must contain the elements of the offense and fairly
inform the defendant of the charge against which he must defend,
and it must also enable the defendant to plead an acquittal or
conviction in bar of future prosecutions for the same offense.
United States v. Resendiz-Ponce, 549 U.S. 102, ___, 127 S. Ct.
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782, 788 (2007) (quoting Hamling v. United States, 418 U.S. 87,
117 (1994) (internal brackets omitted)); see Fed. R. Crim. P.
7(c)(1); see also United States v. Williams, 152 F.3d 294, 299
(4th Cir. 1998) (“‘One of the principal purposes of an
indictment is to apprise the accused of the charge or charges
against him so he can prepare his defense.’”) (quoting United
States v. Fogel, 901 F.2d 23, 25 (4th Cir. 1990)).
Here, the indictment charged that Brown “willfully,
knowingly and intentionally did unlawfully distribute 52.1 grams
(net weight) of a mixture and substance containing a detectible
amount of cocaine base (“crack”). The indictment makes a
similar charge in count 2 with respect to the February 2006
distribution of 47.9 grams of crack. We find that the
indictment was sufficient to allege violations of 21 U.S.C.
§ 841, to apprise Brown of the charges against him, and to allow
him to prepare a defense.
Brown and his attorney both assert on appeal that the
evidence was insufficient to support Brown’s conviction. The
verdict of a jury must be sustained if there is substantial
evidence, taking the view most favorable to the Government, to
support it. Glasser v. United States, 315 U.S. 60, 80 (1942).
“[S]ubstantial evidence is evidence that a reasonable finder of
fact could accept as adequate and sufficient to support a
conclusion of a defendant’s guilt beyond a reasonable doubt.”
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United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en
banc).
The government presented the testimony of Special
Agent Robert Padgett of the State Bureau of Investigation and
that of a confidential informant working with Agent Padgett that
they conducted two controlled purchases of crack cocaine from a
man they knew as “Blaze” or “Doughboy.” Both men identified
Brown from his drivers license photo and identified him in court
as the man from whom they purchased the crack cocaine. Brown’s
defense was that he did not use the nicknames “Blaze” and
“Doughboy” but that another man who lived in the area used those
names. Viewing the evidence in the light most favorable to the
government, we find that the evidence is sufficient to support
the jury’s conclusion that Brown was the perpetrator of the drug
sales, and thus the evidence supports Brown’s convictions on the
two charges. See Glasser, 315 U.S. at 80.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. Accordingly, we affirm Brown’s conviction and sentence.
This court requires that counsel inform Brown, in writing, of
his right to petition the Supreme Court of the United States for
further review. If Brown 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
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representation. Counsel’s motion must state that a copy thereof
was served on Brown. 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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