United States v. Morrison , 78 F. App'x 270 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 03-4076
GARFIELD ORLANDO MORRISON,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Henry E. Hudson, District Judge.
(CR-02-221)
Submitted: June 26, 2003
Decided: October 20, 2003
Before LUTTIG and SHEDD, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
C. David Whaley, MORCHOWER, LUXTON & WHALEY, Rich-
mond, Virginia, for Appellant. Paul J. McNulty, United States Attor-
ney, Peter S. Duffey, Assistant United States Attorney, Richmond,
Virginia, for Appellee.
2 UNITED STATES v. MORRISON
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Garfield Orlando Morrison was convicted by a jury of possession
with intent to distribute cocaine base, in violation of 21 U.S.C. § 841(2000). He was subsequently sentenced to 151 months’ imprisonment.
On appeal, Morrison challenges the sufficiency of evidence to support
his conviction and, based upon Apprendi v. New Jersey, 530 U.S. 466(2000), the district court’s denial of his proposed jury instructions
stating that the government must prove that he knew the exact nature
of the substance distributed. We affirm.
Morrison first argues that there was insufficient evidence to sup-
port his conviction. To determine whether there was sufficient evi-
dence to support a conviction, this court considers whether, taking the
evidence in the light most favorable to the Government, any reason-
able trier of fact could have found the defendant guilty beyond a rea-
sonable doubt. Glasser v. United States, 315 U.S. 60, 80 (1942). This
court does not weigh the evidence or determine the credibility of the
witnesses. Rather, the jury verdict must be upheld if there is substan-
tial evidence to support the verdict. Id.; United States v. Murphy, 35
F.3d 143, 148 (4th Cir. 1994). Given these standards, we find that the
evidence was sufficient to convict Morrison.
Morrison next argues that under Apprendi v. New Jersey, 530 U.S.
466 (2000), the district court erred by refusing to give his requested
jury instructions to the effect that in order to convict him of posses-
sion with intent to distribute cocaine base, in violation of 21 U.S.C.
§ 841 (2000), the government had to prove his knowledge of the
drug’s identity as an element of the offense.
Morrison’s Apprendi argument is without merit. In Apprendi, the
Supreme Court held that "[o]ther than the fact of a prior conviction,
any fact that increases the penalty for a crime beyond the prescribed
UNITED STATES v. MORRISON 3
statutory maximum must be submitted to a jury and proved beyond
a reasonable doubt." 530 U.S. at 490. Because Morrison was sen-
tenced to 151 months’ imprisonment, and the statutory maximum
penalty for an unspecified quantity of any form of cocaine is twenty
years, see 21 U.S.C. § 841(b)(1)(C) (2000), the Apprendi ruling is not
triggered in this case. In any event, Morrison’s reliance on Apprendi
is simply misplaced. In this case, the indictment specifically charged
that "MORRISON did knowingly, intentionally, and unlawfully pos-
sess with the intent to distribute and distribute in excess of fifty (50)
grams of a mixture and substance containing detectable amounts of
cocaine base . . . ." (J.A. 8). Furthermore, the jury instructions
included the specific charge as stated in the indictment. Finally, the
jury found Morrison "guilty as charged in Count 1 of the indictment,"
(J.A. 174), and in fact, returned a special verdict finding "that the sub-
stance in question is cocaine base . . . ." Id. The jury made the very
finding Morrison argues was necessary for his conviction. In short we
find no Apprendi violation in this case based upon the district court’s
refusal to instruct the jury that in order to convict Morrison of posses-
sion with intent to distribute cocaine base, in violation of 21 U.S.C.
§ 841 (2000), the government had to prove his knowledge of the
drug’s identity as an element of the offense.
Accordingly, we affirm Morrison’s conviction and sentence. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
AFFIRMED