US v. William Payton, No. 07-4965 (4th Cir. 2008)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-4965 UNITED STATES OF AMERICA, Plaintiff Appellee, v. WILLIAM TYRONE PAYTON, Defendant Appellant. Appeal from the United States District Court for the District of Maryland, at Greenbelt. Peter J. Messitte, Senior District Judge. (8:06-cr-00341) Submitted: November 10, 2008 Decided: December 8, 2008 Before WILKINSON, GREGORY, and SHEDD, Circuit Judges. Affirmed by unpublished per curiam opinion. Daniel H. Ginsburg, BENNETT & BAIR, LLC, Greenbelt, Maryland, for Appellant. Rod J. Rosenstein, United States Attorney, David I. Salem, Jonathan Su, Assistant United States Attorneys, Greenbelt, Maryland, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: William Tyrone Payton conspiracy to distribute violation of 21 communication 500 U.S.C. device to was convicted grams §§ 846, or more 853 facilitate a by (2000), jury of cocaine, of a in of a conspiracy, cocaine use in violation of 21 U.S.C. § 843(b) (2000), and distribution of 500 grams or more (2000), and asserts that of was cocaine, in sentenced the violation to district 292 months court: (i) of 21 U.S.C. in prison. violated § 841 Payton his Fifth Amendment rights by constructively amending his indictment so he could be convicted based on his marijuana sales; (ii) erred when it admitted evidence of his prior cocaine-related convictions; (iii) erroneously sentenced him as a career offender based, in part, on his prior 18 U.S.C. § 924(c) (2006) conviction; and (iv) erred in refusing to lower his offense level because of his allegedly minor convicted. role in the conspiracy of which he was did not Finding no reversible error, we affirm. First, constructively we find amend that the Payton s district indictment. court A constructive amendment occurs when the bases for conviction are broadened beyond those charged in the indictment. United v. Randall, 171 F.3d 195, 203 (4th Cir. 1999). States Although this may occur if a district court s jury instructions broaden the possible bases for conviction beyond 2 those presented to the grand jury, United States v. Floresca, 38 F.3d 706, 710 (4th Cir. 1994) (en banc), we conclude that the district court s jury instructions did not constructively amend Payton s indictment. The district court correctly instructed the jury that it could find Payton guilty of the cocaine-related charges in his indictment, regardless of his marijuana dealings, so long as they found he engaged in the cocaine-related conduct with which he was charged. We also reject Payton s assertion that the district court erred in admitting his prior cocaine-related convictions under Fed. R. Evid. 404(b). Substantial deference is due a district court s evidentiary rulings and reversal may occur only when there has been an abuse of discretion. Co. v. Joiner, 522 U.S. 136, 141 (1997). by the district court are See General Elec. Rule 404(b) decisions discretionary and overturned unless arbitrary or irrational. will not be See United States v. Powers, 59 F.3d 1460, 1464 (4th Cir. 1995). Because Payton pled not guilty to the crimes with which he was charged, he placed his mental state in issue and the Government was authorized to offer evidence of prior bad acts tending to establish Payton s regarding the cocaine conspiracy. intent and knowledge See United States v. Mark, 943 F.2d 444, 448 (4th Cir. 1991) (holding that evidence of prior drug transactions was offered for a proper purpose because 3 a defendant s charge and knowledge the and evidence intent are admitted elements showed how of the a § 841 defendant obtained the drugs he was charged with selling and that he was a major cocaine distributor responsible for the transaction at issue ). Since Payton admitted that he was around the cocaine conspiracy with which he was charged, but suggested he was involved in legitimate business transactions or only conspired to sell marijuana, we find that Payton s prior cocaine-related convictions were relevant to establish: (i) his knowledge of the cocaine trade; and (ii) that his intent in the conspiracy was to sell cocaine. (4th Cir. See United States v. Hodge, 354 F.3d 305, 312 2004) (finding that evidence of other drug transactions was relevant and necessary because it tended to show the existence of a continuing narcotics business and therefore showed that defendant had knowledge of the drug trade and his intent [was] to distribute the cocaine ); see also United States v. Branch, 537 F.3d 328, 341-42 (4th Cir. 2008) (upholding admissibility of prior conviction for possession with intent to distribute cocaine base as evidence of intent and knowledge in later prosecution for cocaine base possession and distribution). Although Payton also argues that the probative value of the prior bad acts evidence was substantially outweighed by 4 its prejudicial effect, we conclude that the district court s limiting instruction to the jury, as well as the initial Rule 404(b) notice that was given to Payton by the Government, was sufficient to reduce any prejudicial effect the evidence may have had. See United States v. Queen, 132 F.3d 991, 997 (4th Cir. 1997) (holding that the fear a jury may improperly use Rule 404(b) evidence subsides when the trial judge gives the jury a limiting instruction regarding proper use, and that the fear of a trial by ambush recedes when the prosecution has given notice of the evidence to be introduced). * We See Rita also find v. United that States, Payton s 127 S. sentence Ct. 2456, is reasonable. 2462-69 (2007) (upholding presumption of reasonableness for within Guidelines sentence); United States v. Go, 517 F.3d 216, 218 (4th Cir. 2008) (same). for felony Because Payton possessed two prior convictions controlled substance offenses, we find that the district court did not err in classifying Payton as a career offender under U.S. Sentencing Guidelines Manual ( USSG ) § 4B1.1 (2006). * Even if the district court erred in admitting Payton s prior bad acts evidence, given the substantial evidence of Payton s guilt in the cocaine conspiracy, we would find that the verdict would have been the same absent any error. See United States v. Williams, 461 F.3d 441, 448-49 (4th Cir. 2006). 5 Additionally, we uphold the district court s decision to deny Payton a two-level downward adjustment in his offense level for his claimed minor role in the conspiracy, pursuant to USSG § 3B1.2 position in (2006), since a distribution drug [a] seller possesses conspiracy, a central even if he participated in the conspiracy for a relatively brief period of time. See United States v. Brooks, 957 F.2d 1138, 1149 (4th Cir. 1992); see also United States v. Daughtrey, 874 F.2d 213, 218-19 (4th criminal Cir. 1989) conspiracy (recognizing participant that does not simply because conceive of a the conspiracy does not mean that he should be assigned a minor role adjustment if he helped to implement it). 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 the court and argument would not aid the decisional process. AFFIRMED 6

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