United States v. Hughes , 150 F. App'x 271 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-5082
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TONY ORLANDO HUGHES,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Robert C. Doumar, Senior
District Judge. (CR-04-16)
Submitted: September 16, 2005 Decided: October 20, 2005
Before MICHAEL, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
L. Dickerson Bragg, ST. CLAIR LAW FIRM, Norfolk, Virginia, for
Appellant. Paul J. McNulty, United States Attorney, Michael J.
Elston, Scott W. Putney, Assistant United States Attorneys, Newport
News, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Following a jury trial, Tony Orlando Hughes was convicted
of thirty-six counts of a sixty-seven count indictment: one count
of conspiracy to possess with intent to distribute and distribute
cocaine and cocaine base, in violation of 21 U.S.C. § 846 (2000);
sixteen counts of the distribution of cocaine base, in violation of
21 U.S.C. § 841(a)(1) and (b)(1)(A) (2000); four counts of the
distribution of cocaine base, in violation of 21 U.S.C. § 841(a)(1)
and (b)(1)(B) (2000); two counts of the distribution of cocaine
base, in violation of § 841(a)(1) and (b)(1)(C) (2000); two counts
of the distribution of cocaine, in violation of 21 U.S.C.
§ 841(a)(1) and (b)(1)(C) (2000); three counts of possession with
the intent to distribute cocaine, in violation of 21 U.S.C.
§ 841(a)(1) and (b)(1)(B) (2000); and eight counts of possession of
a firearm during and in relation to a drug trafficking crime, in
violation of 18 U.S.C. § 924(c)(1) (2000). Hughes appeals his
convictions and 2616-month sentence. We affirm.
Hughes first challenges the sufficiency of the evidence
resulting in his convictions. A defendant challenging the
sufficiency of the evidence “bears a heavy burden.” United States
v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997) (citation omitted).
To determine if there was sufficient evidence to support a
conviction, this court considers whether, taking the evidence in
the light most favorable to the Government, substantial evidence
- 2 -
supports the jury’s verdict. Glasser v. United States, 315 U.S.
60, 80 (1942) (citation omitted); United States v. Wills, 346 F.3d
476, 495 (4th Cir. 2003) (citation omitted). The court reviews
both direct and circumstantial evidence and permits “the
[G]overnment the benefit of all reasonable inferences from the
facts proven to those sought to be established.” United States v.
Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982) (citations omitted).
Witness credibility is within the sole province of the jury, and
the court will not reassess the credibility of testimony. United
States v. Saunders, 886 F.2d 56, 60 (4th Cir. 1989) (citations
omitted). Further, the uncorroborated testimony of a single
witness may be sufficient, even if the witness is an accomplice, a
co-defendant, or an informant. See United States v. Wilson, 115
F.3d 1185, 1189-90 (4th Cir. 1997).
Fifteen Government witnesses testified against Hughes.
Each witness disclosed to the jury that he was testifying pursuant
to a plea agreement, each witness was subject to cross-examination,
and each witness testified in detail as to drug transactions
completed with Hughes. It was for the jurors to determine what
weight to give each witness’s testimony. Drawing all inferences in
favor of the Government, a reasonable jury could conclude that the
evidence was sufficient to convict Hughes beyond a reasonable
doubt.
- 3 -
Hughes next contends that his sentence violates the Sixth
Amendment because it was based on drug quantities that were not
found by the jury and because it was based upon prior convictions
that were used to enhance his statutory penalties and to calculate
his criminal history. Because Hughes preserved these issues by
objecting to the presentence report and at his sentencing hearing
based upon Blakely v. Washington, 542 U.S. 296 (2004), this court’s
review is de novo. See United States v. Mackins, 315 F.3d 399, 405
(4th Cir. 2003) (“If a defendant has made a timely and sufficient
Apprendi sentencing objection in the trial court, and so preserved
his objection, we review de novo.”) (citation omitted). When a
defendant preserves a Sixth Amendment error, this court “must
reverse unless [it] find[s] this constitutional error harmless
beyond a reasonable doubt, with the Government bearing the burden
of proving harmlessness.” Id. (citations omitted); see United
States v. White, 405 F.3d 208, 223 (4th Cir. 2005) (discussing
difference in burden of proving that error affected substantial
rights under harmless error standard in Fed. R. App. P. 52(a) and
plain error standard in Fed. R. App. P. 52(b)).
Even if the disputed quantity of drugs was removed from
the sentencing calculation, Hughes’ sentence would not have been
different. By its verdict, the jury found the Government proved
beyond a reasonable doubt that the conspiracy involved at least one
and-a-half kilograms of cocaine base (“crack”) and at least five
- 4 -
kilograms of cocaine. This finding alone placed Hughes in the
highest base offense level, thirty-eight. See U.S. Sentencing
Guidelines Manual (“USSG”) § 2D1.1(c)(1) (2003). Thus, because the
actual sentence imposed did not exceed the maximum of the
unenhanced guideline range, there was no Sixth Amendment violation.
See United States v. Evans, 416 F.3d 298, 300-01 (4th Cir. 2005)
(holding that if sentence does not exceed maximum authorized by
facts admitted by defendant or found by jury, there is no Sixth
Amendment violation). Moreover, the district court was required to
impose a statutorily-mandated sentence for the firearm convictions.
See United States v. Robinson, 404 F.3d 850, 862 (4th Cir. 2005)
(“[Even after United States v. Booker, 125 S. Ct. 738 (2005)], a
district court has no discretion to impose a sentence outside of
the statutory range established by Congress for the offense of
conviction.”). Finally, Hughes’ challenge to the use of prior
convictions is foreclosed. See United States v. Cheek, 415 F.3d
349, 350 (4th Cir. 2005) (holding that Sixth Amendment not violated
when sentence enhanced based on prior convictions that were not
charged in indictment or admitted by defendant).
Hughes finally maintains that the district court erred in
imposing the “subsequent conviction” enhancement of 18 U.S.C.
§ 924(c)(1)(C)(i) (2000), arguing that the chain of events
surrounding his conviction should be considered one continuing
offense for sentencing purposes, or alternatively, that prior to
- 5 -
his convictions at trial, he had no convictions under § 924(c)(1);
therefore, he should have received five years for each count and
not the twenty-five year enhancement provided for “second or
subsequent convictions” under § 924(c)(1)(C)(i).
In United States v. Camps, 32 F.3d 102, 106 (4th Cir.
1994), this court concluded that “multiple, consecutive sentences
under section 924(c)(1) are appropriate whenever there have been
multiple, separate acts of firearm use or carriage, even when all
of those acts related to a single, predicate offense.” Further, in
Deal v. United States, 508 U.S. 129, 132 (1993), the Supreme Court
held that, in the context of § 924(c)(1), the term “conviction”
“refers to the finding of guilt by a judge or a jury that
necessarily precedes the entry of a final judgment of conviction”
and not to the final judgment of conviction itself. The Supreme
Court further concluded that “the language of § 924(c)(1) only
requires a ‘conviction after the first conviction.’” Deal, 508
U.S. at 135. Under this reasoning, a defendant convicted of
multiple § 924(c)(1) violations in one trial could properly receive
enhanced sentences for second and subsequent offenses, as at the
time of sentencing, he or she will have “prior convictions.” Thus,
under either theory, Hughes’ argument fails.
Accordingly, we affirm Hughes’ convictions and sentence.
We dispense with oral argument because the facts and legal
- 6 -
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
- 7 -