United States v. Dewayne Robinson , 664 F. App'x 278 ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4518
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DEWAYNE RESHARD ROBINSON,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Big Stone Gap. James P. Jones,
District Judge. (2:14-cr-00006-JPJ-PMS-1)
Submitted: October 20, 2016 Decided: October 25, 2016
Before WILKINSON, TRAXLER, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Timothy W. McAfee, TIMOTHY W. MCAFEE, PLLC, Big Stone Gap,
Virginia, for Appellant. John P. Fishwisk, Jr., United States
Attorney, Jennifer R. Bockhorst, Assistant United States
Attorney, Abingdon, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Dewayne Reshard Robinson was convicted following a jury
trial of conspiracy to distribute and possess with intent to
distribute heroin (Count 1), in violation of 21 U.S.C. § 846
(2012); conspiracy to provide to an inmate and, while an inmate
of a prison, to obtain heroin (Count 2), in violation of 18
U.S.C. § 371 (2012); and attempting to obtain heroin while an
inmate of a prison (Count 3), in violation of 18 U.S.C. § 1791
(2012). The district court sentenced him to three concurrent
terms of 132 months’ imprisonment. On appeal, Robinson
challenges the district court’s denial of his motion for
judgment of acquittal on the ground that the evidence at trial
was insufficient to support his conviction for Count 1. Finding
no error, we affirm.
We review the district court’s denial of a motion for
judgment of acquittal de novo. United States v. Jaensch, 665
F.3d 83, 93 (4th Cir. 2011). We will uphold the conviction if
it is supported by substantial evidence, defined as “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.” United States v. Louthian, 756 F.3d 295,
302-03 (4th Cir. 2014) (internal quotation marks omitted). In
making this determination, we view the evidence and draw all
reasonable inferences in the light most favorable to the
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Government. United States v. McNeal, 818 F.3d 141, 148 (4th
Cir. 2016), cert. denied, __U.S.L.W.__, Nos. 16-5017/5018, 2016
WL 3552855, 2016 WL 3552857 (U.S. Oct. 3, 2016). We must
“consider the evidence in cumulative context rather than in a
piecemeal fashion,” United States v. Strayhorn, 743 F.3d 917,
922 (4th Cir. 2014) (internal quotation marks omitted), and must
defer to the jury’s credibility determinations and resolution of
conflicting evidence, as those decisions “are within the sole
province of the jury and are not susceptible to judicial
review,” Louthian, 756 F.3d at 303 (internal quotation marks
omitted). “Appellate reversal on grounds of insufficient
evidence will be confined to cases where the prosecution’s
failure is clear.” United States v. Fuertes, 805 F.3d 485, 502
(4th Cir. 2015) (alterations and internal quotation marks
omitted), cert. denied, 136 S. Ct. 1220 (2016).
To establish guilt of a narcotics conspiracy under
21 U.S.C. § 846, the Government must prove beyond a reasonable
doubt “(1) an agreement between two or more persons . . . to
distribute or possess narcotics with intent to distribute;
(2) the defendant’s knowledge of the conspiracy; and (3) the
defendant’s knowing and voluntary participation in the
conspiracy.” United States v. Hickman, 626 F.3d 756, 763 (4th
Cir. 2010) (internal quotation marks omitted). The gravamen of
a conspiracy “is an agreement to effectuate a criminal act.”
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United States v. Yearwood, 518 F.3d 220, 226 (4th Cir. 2008)
(internal quotation marks omitted). “The presence of a knowing
and voluntary agreement distinguishes conspiracy from the
completed crime and is therefore an essential element of the
crime of conspiracy.” United States v. Hackley, 662 F.3d 671,
679 (4th Cir. 2011). “Once the Government proves a conspiracy,
the evidence need only establish a slight connection between a
defendant and the conspiracy to support conviction.” United
States v. Green, 599 F.3d 360, 367 (4th Cir. 2010). “The
Government is not required to prove that a defendant knew all
his co-conspirators or all of the details of the conspiracy;
moreover, guilt may be established even by proof that a
defendant played only a minor role in the conspiracy.” Id. at
367-68.
As a conspiracy is, by its nature, “clandestine and
covert,” it is generally proven through circumstantial evidence.
United States v. Burgos, 94 F.3d 849, 857 (4th Cir. 1996) (en
banc). “Circumstantial evidence tending to prove a conspiracy
may consist of a defendant’s relationship with other members of
the conspiracy, the length of this association, the defendant’s
attitude and conduct, and the nature of the conspiracy.”
Yearwood, 518 F.3d at 226 (brackets and internal quotation marks
omitted). “While circumstantial evidence may sufficiently
support a conspiracy conviction, the Government nevertheless
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must establish proof of each element of a conspiracy beyond a
reasonable doubt.” Burgos, 94 F.3d at 858.
On appeal, Robinson primarily asserts that the evidence
adduced at trial failed to establish either Robinson’s intent to
distribute the heroin or an agreement between Robinson and
others to distribute and possess heroin with intent to
distribute. We have thoroughly reviewed the record and find
Robinson’s arguments unpersuasive. Rather, viewed in the light
most favorable to the Government, the evidence at trial
permitted the jury to reasonably infer that Robinson knew of,
agreed in, and coordinated details of Danielle Morris’ attempt
to smuggle heroin during a visit to Robinson at the prison where
he was housed as an inmate. Evidence of Robinson’s gambling
habits and Morris’ involvement in transferring large amounts of
money to other inmates at Robinson’s direction, coupled with
testimony that gambling debts could be satisfied by smuggling
contraband, also provided support for the jury’s finding that
Robinson and Morris intended the heroin’s further distribution.
Recorded telephone conversations between Robinson and
Morris tended to demonstrate not only Robinson’s active
involvement in Morris’ smuggling attempt but also their shared
intent to redistribute the heroin. This intent is evidenced
particularly strongly by a conversation in which they discussed
their comparative risks, whether unspecified activity was
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sufficiently lucrative to justify those risks, and their
apparent split in profits based upon those relative risks.
Although Morris and Robinson did not expressly identify the
subject of these comments, we conclude the jury could
permissibly infer from this conversation, viewed in the context
of the remaining trial evidence, that the conversation referred
to the alleged conspiracy. Cf. Hackley, 662 F.3d at 680
(inferring conspiracy from single drug transaction based in part
on “cryptic conversation” between defendant and girlfriend).
Robinson identifies a variety of circumstantial evidence
that he adduced at trial in an attempt to undermine the
Government’s case. However, the jury was not required to
resolve conflicting evidence in Robinson’s favor. See Louthian,
756 F.3d at 303. Thus, we find no error in the district court’s
conclusion that the evidence, viewed in the light most favorable
to the Government, was sufficient to establish Robinson’s
knowing and voluntary participation in an agreement to
distribute and possess with intent to distribute heroin.
Accordingly, we affirm the district court’s judgment. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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