United States v. Luck , 200 F. App'x 263 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4801
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CARLTON N. LUCK, a/k/a C-4,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Charlottesville. Norman K. Moon, District
Judge. (CR-04-47-NKM)
Submitted: September 14, 2006 Decided: September 22, 2006
Before WILLIAMS and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Charleston, West Virginia, for Appellant. John L. Brownlee, United
States Attorney, Jean B. Hudson, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Charlottesville, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM
Carlton N. Luck appeals his convictions and 444 month sentence
for various drug and gun crimes. Luck argues that the district
court erred at trial by admitting into evidence irrelevant and
prejudicial photographs of Luck and other unidentified persons.
Luck further contends that the district court erred at sentencing
by not resolving one of Luck’s objections before announcing his
sentence and in imposing an unreasonable sentence. Because we find
Luck’s arguments unpersuasive, we affirm his convictions and
sentence.
I.
In 2003, a multi-jurisdictional task force began investigating
a Charlottesville narcotics trafficking gang. In the course of
that investigation, the agents became interested in the narcotics
distribution activities of a person known only as C4, who was later
identified as Luck.
In March 2004, agents, with the help of confidential informant
Artina Johnson, were able to negotiate two controlled purchases of
crack cocaine from Luck. Johnson had made several phone calls to
Luck to arrange the sale and on March 18, 2004, she went to Luck’s
home and purchased 2.873 grams of cocaine base from Luck. On March
24, 2004, Johnson executed a second controlled purchase when she
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returned to Luck’s home and purchased another 2.448 grams of
cocaine base.
On April 29, 2004, the agents executed a search warrant at
Luck’s home, where they recovered various drug paraphernalia, the
cell phone that Johnson called to arrange the drug transactions,
and several photographs, including three Polaroids with writing in
the margins that are the subject of this appeal. Luck was present
at the search and was arrested.
On February 16, 2005, a federal grand jury returned a
Superceding Indictment against Luck. Count One charged Luck with
conspiracy to knowingly and intentionally distribute and possess
with intent to distribute cocaine, marijuana, and fifty grams or
more of cocaine base in violation of 21 U.S.C. § 846. Count Two
charged Luck with knowingly brandishing a firearm during or in
relation to a drug trafficking crime, in violation of 18 U.S.C. §
942(c)(1). Counts Three and Four charged Luck with knowingly
distributing cocaine base, in violation of 21 U.S.C. § 841(a)(1)
and 18 U.S.C. § 2.
Luck stood trial on the four-count indictment on March 22-23,
2005. During trial, the Government produced testimony from Johnson
regarding her relationship with Luck, and detailing the two
controlled purchases she made from Luck. Johnson testified that
she first met Luck through her boyfriend, Jesse Thompkins, who
regularly bought cocaine base from Luck.
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Thompkins testified as a Government witness as well,
explaining that he frequently bought cocaine base from Luck over
the course of a year. Thompkins testified that Luck appeared at
Thompkins’s house one day to collect a debt. An argument ensued
over the debt, culminating in Luck pointing a gun at both Thompkins
and Thompkins’s dog. Luck told Thompkins that he would shoot his
dog if Luck did not receive his money. At that point, Johnson
intervened and paid Luck $50 on Thompkins’s behalf. Johnson stated
that after she paid Luck, he pointed his gun at Thompkins’s head
and said, “I should f---ing kill you right now for your girl having
to pay me something that you owe me.” (J.A. at 258.)
Detective Brian O’Donnell of the Charlottesville police force
testified about the investigation, the two controlled purchases,
and the search of Luck’s home. In the course of O’Donnell’s
testimony, the Government introduced several photographs that were
seized during the search. One of the photographs showed three men,
with the names “Bush,” “Mike,” and “C4" written across the top and
the phrase “OPERATION CONSPIRACY” appearing at the bottom of the
photograph. The second photograph showed four men, with the names
“C4,” “Divine,” “Q,” and “KP” written above and below the picture,
and the words “WHO SAID WE NEED A LAWYER? WE HOLD S--T DOWN FOR
REAL” written along the photograph’s left side. The third
photograph showed four men, with the phrase “Bownville mo$t wanted”
and the names “JaBo,” “C4,” “Divine,” “Wolf,” and “Zeek” written in
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the margins. Luck objected to the admission of the photographs on
the ground that they were “all pictures from New York.” (J.A. at
87.) The district court overruled the objection, finding that the
pictures were “not that prejudicial.” (J.A. at 87.)
On March 23, the jury returned a verdict of guilty on all
counts. On April 29, 2005, Luck’s Presentence Investigation Report
(PSR) was prepared. The PSR labeled Luck a career offender with a
criminal history category of VI, resulting in an advisory Guideline
range on Counts One, Three, and Four of 360 months to life
imprisonment. Luck’s conviction on Count Two required the
imposition of a statutory term of imprisonment of 84 months, to be
served consecutively.
On July 28, 2005, the district court conducted Luck’s
sentencing hearing. Through counsel, Luck made a number of
objections to the PSR, including the fact that two prior
convictions that occurred approximately a year apart were counted
as separate offenses as opposed to closely related and similar
offenses. The district court rejected all of Luck’s objections and
ruled that the advisory Guideline range in the PSR was properly
calculated. Luck then addressed the court in the form of his
allocution. Luck made 18 additional objections during allocution,
including an objection “to the criminal history information
presented to the judge by the [Government] in their Title 21 U.S.C.
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Section 851 motion, in order to sentence [me] as a career criminal
offender.” (J.A. at 401.)
At the conclusion of Luck’s allocution, the district court
imposed a sentence at the low end of the Guidelines of 444 months’
imprisonment: 360 months for Counts One, Three, and Four, to be
served concurrently, and 84 months on Count Two, to be served
consecutively. Before the end of the hearing, Luck’s counsel
stated that he would like to adopt the objections made by Luck
during his allocution so that they would be part of the record. He
also stated his belief that he had previously made “most of those
objections.” (J.A. at 408.) The district court stated in response
that any outstanding objections were overruled. Luck timely
appealed, challenging both his convictions and sentence.
II.
Luck argues that the three photographs introduced into
evidence by the Government were irrelevant to the charges against
Luck and unduly prejudicial. We disagree.
“The district court’s admission of these pictures cannot be
disturbed absent a clear abuse of discretion.” United States v.
Analla, 975 F.2d 119, 126 (4th Cir. 1992). Evidence is relevant if
it has “any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or
less probable than it would be without the evidence.” Fed. R.
6
Evid. 401. Irrelevant evidence is inadmissible, Fed. R. Evid. 402,
and even relevant evidence may be inadmissible “if its probative
value is substantially outweighed by the danger of unfair
prejudice.” Fed. R. Evid. 403. Moreover, relevant evidence should
only be excluded under Rule 403 as unfairly prejudicial if there
exists “a genuine risk that the emotions of a jury will be excited
to irrational behavior, and this risk is disproportionate to the
probative value of the offered evidence.” United States v.
Williams, 445 F.3d 724, 730 (4th Cir. 2006) (internal quotation
marks and alteration omitted).
The photographs at issue were relevant insofar as they matched
images of Luck with his alias, C4. Thus, the pictures supported
the testimony of Johnson, Det. O’Donnell, and Thompkins, who all
referred to Luck and C4 as the same man. See, e.g., (J.A. at 60
(“We received a call back from an individual that we only knew as
C4.” (testimony of Det. O’Donnell)).)
We also cannot say that the district court abused its
discretion in determining that any potential prejudice did not
substantially outweigh the photographs’ probative value. The
photographs, on their face, were not overtly prejudicial to Luck.
For example, neither Luck nor the men accompanying him are seen in
the photographs possessing narcotics or firearms. Any possible
prejudice to Luck would have to come from association with the
other men in the photographs or the phrases -- “Operation
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Conspiracy,” “Who said we need a lawyer,” and “Bownville Most
Wanted” -- that were written on the photographs. The Government,
however, did not attempt to link the phrases with the crimes
charged. Instead, they used the photographs to link Luck to the
alias C4. As to the other men in the photographs, Det. O’Donnell
testified that he did not recognize any of the men, and the
Government made no attempt to characterize the men as co-members
with Luck in any criminal conspiracy. Accordingly, the district
court did not err in allowing the photographs into evidence.
III.
Luck next contends that the district court erred by not
resolving Luck’s objection to the use of prior convictions to
increase his sentence before imposing his sentence. We find this
argument without merit.
“A mere objection to the finding in the [PSR] is not
sufficient.” United States v. Terry, 916 F.2d 157, 162 (4th Cir.
1990). Instead, Luck had a “duty to make a showing that the
information in the [PSR was] unreliable, and articulate the reasons
why the facts contained therein [were] untrue or inaccurate.” Id.Because Luck failed to explain why he was objecting to the criminal
history information presented in the Government’s § 851 motion, the
district court was “free to adopt the findings of the [PSR] without
more specific inquiry or explanation.” Id. (internal quotation
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marks omitted). Moreover, Luck’s counsel stated that he had
previously made most of Luck’s objections, and the district court
stated at the conclusion of the hearing that he was overruling all
outstanding objections. Accordingly, the district court did not
err in failing to explicitly reject Luck’s objection made at
allocution prior to announcing his sentence.
IV.
Luck’s final contention is that his sentence of 360 months’
imprisonment on Counts One, Three, and Four is unreasonable because
it is greater than necessary to comply with the purposes of
sentencing. We disagree.
We review post-Booker sentencing decisions for reasonableness.
United States v. Johnson, 445 F.3d 339, 341 (4th Cir. 2006). In
determining a sentence, district courts must still follow the
commands of 18 U.S.C.A § 3553(a), determine the proper advisory
Guidelines range, and take that range into account. United States
v. Green, 436 F.3d 449, 456-57 (4th Cir. 2006). That said, “a
sentence within the proper advisory Guidelines range is
presumptively reasonable.” Id. at 457 (internal quotation marks
and alteration omitted). “A defendant can only rebut the
presumption by demonstrating that the sentence is unreasonable when
measured against the § 3553(a) factors.” United States v. Montes-
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Pineda, 445 F.3d 375, 379 (4th Cir. 2006) (internal quotation marks
and alteration omitted).
Luck cannot show that his sentence, which was imposed at the
low end of the Guidelines range, is unreasonable. There is nothing
“minor” about an ongoing drug trafficking conspiracy and the use of
firearms in furtherance of that conspiracy. When that conspiracy
is viewed in light of Luck’s extensive criminal history, it was
certainly reasonable for the district court to conclude that a
sentence of 360 months was sufficient, but not greater than
necessary, to comply with the sentencing purposes set forth in §
3553(a)(2).
V.
For the foregoing reasons, we affirm Luck’s convictions and
sentence.
AFFIRMED
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