United States v. Rice ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-5194
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MICHAEL WALLACE RICE,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, District
Judge. (CR-05-11)
Submitted: November 30, 2006 Decided: December 29, 2006
Before WILKINSON, MOTZ, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Joseph Ryland Winston, Richmond, Virginia, for Appellant. Chuck
Rosenberg, United States Attorney, Elizabeth C. Wu, Assistant
United States Attorney, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael W. Rice appeals his conviction after a jury trial
of one count of conspiracy to possess with intent to distribute
more than 500 grams of cocaine, in violation of 21 U.S.C.
§§ 841(a)(1), 846 (2000) (Count One) and one count of possession of
heroin, in violation of 21 U.S.C. § 844 (2000) (Count Four), and
the 360-month sentence imposed by the district court. We affirm.
In determining the sentencing range for Rice under the
Sentencing Guidelines,* the probation officer recommended that Rice
be held accountable for at least 500 grams but less than two
kilograms of cocaine and 0.46 grams of heroin, which resulted in a
base offense level of twenty-six pursuant to USSG § 2D1.1(c)(7).
The probation officer recommended a two-level enhancement for
obstruction of justice pursuant to USSG § 3C1.1, because Rice
presented false testimony at trial, yielding a total offense level
of twenty-eight. Based on Rice’s prior crimes, however, he was
classified as a career offender pursuant to USSG § 4B1.1, and his
offense level was thirty-seven. Rice’s prior criminal activity
yielded a total of nine criminal history points, placing him in
Category IV. His status as a career offender, however, mandated
criminal history Category VI. The resulting sentencing range based
on a total offense level of thirty-seven and criminal history
category VI was 360 months to life imprisonment. The district
*
U.S. Sentencing Guidelines Manual (2005) (USSG).
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court sentenced Rice to 360 months of imprisonment and Rice timely
appealed.
On appeal, counsel first asserts that the district court
erred in allowing the admission of testimony that a witness had
purchased drugs from Rice daily, cross-examination by the Assistant
United States Attorney (AUSA) concerning Rice’s drug conviction
sixteen years earlier, and questions from the AUSA about Rice’s
possession of heroin when he was arrested in connection with the
instant case. Review of a district court’s determination of the
admissibility of evidence under Federal Rule of Evidence 404(b) is
for abuse of discretion. See United States v. Queen, 132 F.3d 991,
995 (4th Cir. 1997). A district court will not be found to have
abused its discretion unless its decision to admit evidence under
Rule 404(b) was arbitrary or irrational. See United States v.
White, 405 F.3d 208, 212-13 (4th Cir. 2005); United States v.
Hodge, 354 F.3d 305, 311-12 (4th Cir. 2004) (upholding admission of
evidence of prior drug sales).
Evidence of other crimes is not admissible to prove bad
character or criminal propensity. Fed. R. Evid. 404(b). Such
evidence is admissible, however, to prove “motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence of
mistake or accident.” Id.; see Queen, 132 F.3d at 994. Rule
404(b) is an inclusive rule, allowing evidence of other crimes or
acts except that which tends to prove only criminal disposition.
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Queen, 132 F.3d at 994-95; United States v. Rawle, 845 F.2d 1244,
1247 (4th Cir. 1988). Evidence of prior acts is admissible under
Rules 404(b) and 403 if the evidence is: (1) relevant to an issue
other than the general character of the defendant, (2) necessary,
and (3) reliable, and if the probative value of the evidence is not
substantially outweighed by its prejudicial effect. Queen, 132
F.3d at 997. Limiting jury instructions explaining the purpose for
admitting evidence of prior acts and advance notice of the intent
to introduce prior act evidence provide additional protection to
defendants. Id. We have reviewed the trial transcripts and
conclude that the district court did not abuse its discretion in
its rulings regarding the evidence in question.
Counsel next asserts that the district court erred in
enhancing Rice’s offense level for obstruction of justice because
the facts supporting this enhancement were not found by the jury,
and the evidence supporting the enhancement was insufficient. We
review a district court’s determination that a defendant obstructed
justice for clear error. United States v. Hughes, 401 F.3d 540,
560 (4th Cir. 2005). In this case, however, such review is
unnecessary, as the enhancement had no effect on Rice’s sentence.
The length of Rice’s sentence was controlled by the determination
that he qualified for sentencing as a career offender. At
sentencing, Rice withdrew his objection to the use of a particular
predicate conviction and agreed that the career offender provision
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was properly applied, and counsel does not contest its application
on appeal. Rice’s offense level based solely on drug quantity and
the obstruction enhancement was twenty-eight. His status as a
career offender with a prior felony drug conviction increased his
offense level to thirty-seven. Accordingly, even if the district
court erred in imposing the obstruction of justice enhancement,
Rice suffered no prejudice from the error because it did not affect
the determination of his sentence. United States v. Harp, 406 F.3d
242, 247 n.3 (4th Cir.), cert. denied, 126 S. Ct. 297 (2005).
Counsel argues that the district court erred in imposing
a sentence of 360 months of imprisonment. He asserts that the
length of the sentence is unreasonable because it shocks the
conscience. This court reviews a district court’s sentence for
reasonableness. United States v. Hughes, 401 F.3d 540, 546-47 (4th
Cir. 2005). “Consistent with the remedial scheme set forth in
Booker, a district court shall first calculate (after making the
appropriate findings of fact) the range prescribed by the
guidelines.” Id. at 546.
Next, the district court must consider the Guideline
range in conjunction with other relevant factors under the
Guidelines and 18 U.S.C.A. § 3553(a) (West Supp. 2006), and impose
a sentence. “A sentence within the proper advisory Guidelines
range is presumptively reasonable.” United States v. Johnson, 445
F.3d 339, 341-42 (4th Cir. 2006). If a court imposes a sentence
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outside the Guideline range, the court must state its reasons for
doing so. Hughes, 401 F.3d at 546. The sentence must be “within
the statutorily prescribed range and . . . reasonable.” Id. at
546-47 (citations omitted). Rice’s conviction of a drug conspiracy
involving 500 or more grams of cocaine and his prior felony drug
convictions exposed him to a statutory sentence of at least ten
years up to life imprisonment, 21 U.S.C.A. § 841(b)(1)(B); and his
conviction of possession of heroin carried a statutory maximum of
three years. 21 U.S.C. § 844(a).
In this case the district court calculated the Guideline
range and heard argument from counsel and a statement by Rice. The
court specifically stated that it considered the advisory
Guidelines and the factors in § 3553(a) before imposing sentence.
Our review of the record convinces us that the district court
considered the § 3553(a) factors and adequately explained its
reasoning in selecting the sentence imposed. “The district court
need not discuss each factor set forth in § 3553(a) ‘in checklist
fashion’; ‘it is enough to calculate the range accurately and
explain why (if the sentence lies outside it) this defendant
deserves more or less.’” United States v. Moreland, 437 F.3d 424,
432 (4th Cir.) (quoting United States v. Dean, 414 F.3d 725, 729
(7th Cir. 2005)), cert. denied, 126 S. Ct. 2054 (2006).
Rice’s sentence was within the properly calculated
Guideline range and did not exceed the statutory maximum. The
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“sentence was selected pursuant to a reasoned process in accordance
with law, in which the court did not give excessive weight to any
relevant factor, and which effected a fair and just result in light
of the relevant facts and law.” United States v. Green, 436 F.3d
449, 457 (4th Cir.), cert. denied, 126 S. Ct. 2309 (2006). To the
extent Rice is arguing that his sentence is disproportionate, we
find this argument meritless.
Accordingly, we affirm Rice’s convictions and sentence.
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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