US v. Ricardo M. Suggs, No. 07-4430 (4th Cir. 2008)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-4430 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus RICARDO M. SUGGS, JR., Defendant - Appellant. Appeal from the United States District Court for the Northern District of West Virginia, at Wheeling. Frederick P. Stamp, Jr., Senior District Judge. (5:06-cr-00027) Submitted: January 30, 2008 Decided: February 19, 2008 Before MICHAEL, GREGORY, and DUNCAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Matthew M. Robinson, ROBINSON & BRANDT, PSC, Cincinnati, Ohio, for Appellant. Sharon L. Potter, United States Attorney, David J. Perri, Assistant United States Attorney, Wheeling, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Ricardo M. Suggs, Jr. was indicted on one count of possession of a firearm by a convicted felon, 18 U.S.C. § 922(g)(1) (2000). A superseding indictment was later returned charging him with: the § 922(g)(1) offense (Count One); witness tampering with intent to kill, 18 U.S.C. § 1512(a)(1)(A) (2000) (Count Two); witness tampering by use of force, 18 U.S.C. § 1512(a)(2)(A) (2000) (Count Three); and witness tampering through corrupt persuasion, 18 U.S.C. § 1512(b)(1) (2000) (Count Four). granted Suggs motion to bifurcate. convicted on Count One. The district court At his first trial, Suggs was At the subsequent trial, he was convicted on Counts Two and Three and acquitted on Count Four. sentenced to 324 months in prison. He was We affirm. I Suggs first contends that the evidence was insufficient to convict him on any of the three counts. When addressing a challenge to the sufficiency of the evidence, we consider whether the evidence, when viewed in the light most favorable to the Government, was sufficient for a rational trier of fact to have found the essential elements of the crime beyond a reasonable doubt. Glasser v. United States, 315 U.S. 60, 80 (1942); United States v. Stewart, 256 F.3d 231, 250 (4th Cir. 2001). If substantial evidence exists to support a verdict, the verdict must - 2 - be sustained. Glasser, 315 U.S. at 80. We do not review the credibility of witnesses, and we assume the jury resolved all contradictions in the testimony in favor of the Government. United States v. Sun, 278 F.3d 302, 313 (4th Cir. 2002). Firearm Conviction To establish a violation of § 922(g)(1), the Government must prove that: the defendant was a convicted felon; he knowingly possessed the firearm; and the firearm traveled in interstate commerce. United States v. Gallimore, 247 F.3d 134, 136 (4th Cir. 2001); United States v. Langley, 62 F.3d 602, 606 (4th Cir. 1995) (en banc).1 Here, the parties stipulated that Suggs was a convicted felon and that the firearm, a Phoenix Arms .22 handgun, had the requisite interstate commerce nexus. The disputed issue, therefore, is possession, which may be actual or constructive. Gallimore, 247 F.3d at 136-37. Timothy Sears testified that on March 1, 2006, he and Salih el Mohammad got into a car with Suggs and Blair Thompson. Suggs was driving, Thompson was in the front passenger seat, and Mohammad and Sears were in the back seat. Sears observed both Suggs and Thompson with handguns, waving them around jokingly. At one point, Suggs placed his gun near Thompson s face. 1 Contrary to Suggs argument on appeal, physical evidence linking the defendant to the firearm is not necessary to convict under 18 U.S.C. § 922(g)(1). - 3 - Officer Steven Falbo, of the Weirton, West Virginia, police department, testified that on March 1, 2006, at approximately 3:30 a.m., he initiated a traffic stop of the car Suggs was driving. Suggs was the sole occupant of the car. Sergeant Bruce Marshall testified that he retrieved a Phoenix Arms .22 handgun from under the driver s seat of the vehicle. Based on the above testimony, we find the evidence sufficient to establish possession. establish actual possession, Not only did Sears testimony but the officers testimony established that Suggs constructively possessed the gun. United States v. Blue, 957 F.2d 106, 107 (4th Cir. See 1992) (constructive possession of contraband exists if defendant has ownership, dominion, or control over the contraband or premises or vehicle in which contraband discovered). Witness Tampering The Government s theory at the second trial was that, when Suggs learned that Sears had given a written statement to the police and had been subpoenaed to testify at trial on Count One, Suggs resolved to kill Sears before he could testify. Thus, on July One 21, 2006--five days before the trial on Count was originally scheduled to begin--Suggs broke into Sears home, where he shot both Sears and Sears mother, Rhonda West, intending to kill Sears. - 4 - To establish a violation of 18 U.S.C. § 1512(a)(1)(A), the United States had to prove that Suggs knowingly attempted to kill Sears and that he did so in order to prevent Sears attendance or testimony at the first trial. 1059, 1067 (8th Cir. 2004). See United States v. Rose, 362 F.3d To establish a violation of 18 U.S.C. § 1512(a)(1)(B), the United States had to prove that Suggs used the threat of physical force with the intent of curtailing Sears involvement in the prosecution. See United States v. England, 507 F.3d 581, 588 (7th Cir. 2007). Sears testified that on July 5, 2006, he ran into Suggs at a bar. It was clear to Sears that Suggs knew that Sears had made a statement to the police concerning the firearm offense. The men argued. the car. Suggs insisted to Sears that there had been no guns in Sears replied that he would not lie for Suggs. Sears also testified that on July 21, 2006, he heard a loud bang at the side door and saw an intruder enter his home. The intruder had a silver handgun, which he pointed at Sears head. Sears recognized the intruder as Suggs. you don t got to do this, Man. Sears said, No, Ricky, I ain t going to go down there. ain t going to say nothing to the court. you. I Suggs replied, I told Suggs then attempted to shoot Sears, but the gun jammed several times. Rhonda West, Sears mother, also pleaded with Suggs, saying that no one would testify. ain t got nothing to do with you, Shorty. - 5 - Suggs replied, This There was testimony that Suggs often referred to women as Shorty. Suggs walked around the room, attempting to get a clear shot at Sears, whom West was trying to protect with her body. Suggs eventually fired two shots, hitting Suggs in the forearm and West in the hand. testified that he was certain the intruder was Suggs. Sears Similarly, West knew that the assailant was Suggs, and she addressed him as Ricky when begging him not to shoot and promising there would be no testimony. Jamol Alexander testified that on the night of July 20, 2006, he and Suggs went to a bar. snitched on him. Suggs mentioned that someone had Alexander realized that Suggs was speaking of Sears. Suggs informed Alexander that he would have to murk Sears to prevent his testimony. Murk is slang for murder. Suggs asked Alexander whether he had a gun, and when Alexander replied that he did, Suggs asked to purchase it. Suggs and Alexander left the bar and drove to Alexander s home, which is in Sears neighborhood. Sears home. Suggs asked to ride by The men drove around Sears block twice, and Suggs remarked that Sears was home. Alexander gave Suggs a gun. Suggs told Alexander that he would be paid for the gun if Alexander kicked Sears door in. away. Alexander kicked the door open and ran A few minutes later, Suggs returned to Alexander and announced, I got him. I shot him and his mom. him. - 6 - I think I murked This evidence was sufficient to convict Suggs on both Counts Two and Three. There was overwhelming evidence that Suggs was the assailant who broke into Sears home and shot both Sears and his mother. Further, conclusively showed with that respect Suggs to Count attempted Two, to kill the evidence Sears. He announced to Alexander his intent to murder Sears in order to prevent his testimony at the firearm trial, and he tried to shoot Sears in the head. With respect to Count Three, the evidence established that Suggs used physical force against both Sears and West in an effort to prevent Sears imminent testimony. II Suggs contends that the district court erred at the trial on Count One when it permitted the introduction of evidence that officers found cocaine and marijuana in Suggs car and evidence that Suggs shot Sears and West. Suggs further contends that the district court erred at the second trial when it permitted the introduction of certain crime scene photographs and a 911 recording. We review the admission of evidence for abuse of discretion. United States v. Forrest, 429 F.3d 73, 79 (4th Cir. 2005). We find no merit to Suggs arguments. Testimony about drugs found in Suggs car was intrinsic to the charged offense and admissible to complete the story of the crime. See United States v. Higgs, 353 F.3d 281, 311 (4th Cir. - 7 - 2003); United States v. Kennedy, 32 F.3d 876, 885 (4th Cir. 1994). The drugs were found location as the gun. contemporaneously with and in the same Additionally, Sgt. Marshall discovered the gun after his canine officer alerted to the presence of drugs in the car. Sears testimony at the first trial about Suggs attempt to persuade Sears not to testify and about the shootings was admissible under Fed. [e]vidence of R. witness Evid. 404(b). intimidation is We have held that to prove admissible conciousness of guilt and criminal intent under [Rule] 404(b), if the evidence (1) is related to the offense charged and (2) is reliable. 1996). United States v. Hayden, 85 F.3d 153, 159 (4th Cir. Here, the evidence was related to the firearm offense because it showed that Suggs was trying to dissuade Sears from testifying. Further, the evidence was reliable, as it came from Sears himself. Finally, given the overwhelming evidence that Suggs possessed the gun, the introduction of testimony shootings did not result in undue prejudice. about the See Fed. R. Evid. 403. Suggs also contests the admission at the second trial of a tape of Rhonda West s 911 call. We conclude that the recording was admissible under Fed. R. Evid. 803(6) because it constitutes a record kept activity. in the course of a regularly conducted business The tape s probative value did not outweigh the chance - 8 - of any unfair prejudice to Suggs, given the powerful testimony by Sears, West, and Alexander. At the second trial, photographs of the crime scene were admitted into evidence. Some of the photographs showed children s toys near pools of blood. an abuse of discretion. Admission of these photographs was not Rather than inflaming the passions of the jury, the photographs merely completed the story of the crime. Again, given the substantial testimony against Suggs, there is no chance that introduction of the photographs unduly prejudiced his defense. III We review a sentence imposed after United States v. Booker, 543 U.S. 220 (2005), to determine whether it is within the statutorily prescribed range and reasonable. States v. Hughes, 401 F.3d 540, 546-47 (4th Cir. 2005). Suggs sentence was statutorily authorized. United Here, Reasonableness review requires us to consider whether the chosen sentence constitutes an abuse of discretion. United States v. Pauley, No. 07-4270, 2007 WL 4555520, at *5 (4th Cir. Dec. 28, 2007). In making this decision, we first examine the sentence for significant procedural errors. Id. There were no such errors in this case. sentencing court: We note that the correctly calculated the advisory guideline - 9 - range of 324-405 months;2 heard from the parties regarding an appropriate sentence; and considered the factors3 set forth at 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2007). Id.; see Gall v. United States, No. 06-7949, 2007 WL 4292116, at *7 (U.S. Dec. 10, 2007). Our reasonableness review also requires us to consider the substance of the sentence, taking into account the totality of the circumstances. reviewed the Pauley, 2007 WL 4555520, at *5. record, we conclude that Having carefully Suggs sentence is reasonable. IV We accordingly affirm Suggs 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 2 We reject Suggs contention that the district court engaged in inappropriate judicial factfinding when it calculated his base offense level and determined that his offense level should be enhanced based on obstruction of justice and serious bodily injury to the victims. After Booker, as before, facts used in setting a sentence at or below the statutory maximum are determined by the judge based on a preponderance of the evidence. United States v. Morris, 429 F.3d 65, 72 (4th Cir. 2005). 3 The district court adequately considered the statutory factors prior to imposing sentence. We note that a sentencing court need not robotically tick through every subsection of § 3553(a). United States v. Montes-Pineda, 445 F.3d 375, 380 (4th Cir. 2006); see Rita v. United States, 127 S. Ct. 2456, 2462-69 (2007). - 10 -

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