US v. Corey Troupe, No. 07-5030 (4th Cir. 2008)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-5030 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. COREY JERMAINE TROUPE, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Henry Coke Morgan, Jr., Senior District Judge. (2:07-cr-00046-HCM) Submitted: October 31, 2008 Decided: December 10, 2008 Before NIEMEYER, GREGORY, and AGEE, Circuit Judges. Affirmed in part; vacated and remanded in part by unpublished per curiam opinion. Michael S. Nachmanoff, Federal Public Defender, Keith Loren Kimball, Frances H. Pratt, Assistant Federal Public Defenders, Norfolk, Virginia, for Appellant. Chuck Rosenberg, United States Attorney, Richard D. Cooke, William D. Muhr, Assistant United States Attorneys, Norfolk, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Following a jury trial, Corey Jermaine Troupe was convicted of possession with intent to distribute approximately 53.8 grams of cocaine, in violation of 21 U.S.C.A. § 841(a)(1), (b)(1)(C) (West 1999 & Supp. 2008) (Count One); possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1) (2006) (Count Two); and possession of a firearm by a §§ 922(g)(1), convicted 924(e)(1) felon, (2006) in violation (Count of Three). 18 The U.S.C. district court sentenced Troupe to 164 months in prison on Count One, a consecutive sixty months in prison on Count Two, and 120 months in prison on Count Three, to be served concurrently with the other sentences, for a total of 224 months in prison. Troupe timely appealed. At the close of the Government s evidence, Troupe filed a motion for judgment of acquittal pursuant to Rule 29 of the Federal Rules of Civil Procedure, contending Government had failed to establish venue. Government occurred had in presented Greensville evidence County, that the Specifically, the the Virginia, that relevant but events neglected to establish that Greensville County was in the Eastern District of Virginia. Rather than grant the Rule 29 motion, the district court permitted the Government to reopen its case to establish that Greensville County is in the Eastern District of Virginia. 2 Troupe contends denying the on appeal Rule 29 that motion the and district abused court by discretion its erred by permitting the Government to reopen its case to establish venue. A court may take judicial notice that venue is proper in a particular district. United States v. Kelly, 535 F.3d 1229, 1235-36 (10th Cir. 2008); United States v. Greer, 440 F.3d 1267, 1272 (11th Cir. 2006); cf. United States v. Lavender, 602 F.2d 639, 641 judicial (4th notice jurisdiction). question could 1979) that (holding crime that occurred court may within take federal In light of the evidence that the events in occurred have Cir. taken in Greensville judicial notice County, that the proper district venue court had been established and denied the Rule 29 motion on this basis. Rather however, the than take district judicial court took notice the of proper additional venue, step of permitting the Government to reopen its case to establish venue. A court may allow the Government to reopen its case-in-chief to present additional evidence after a defendant moves for judgment of acquittal, United States v. Gray, 405 F.3d 227, 238 n.5 (4th Cir. 2005), discretion. 1996). and its decision will be reviewed for abuse of United States v. Abbas, 74 F.3d 506, 510 (4th Cir. We find no abuse of discretion in the district court s decision to permit the Government to reopen its case-in-chief to establish proper venue. 3 Next, Troupe argues that the district court improperly permitted the Government to impeach him with a thirteen-year-old conviction, in violation of Rule 609 of the Federal Rules of Evidence. Rule 609 is an impeachment rule which governs the admissibility of evidence of certain criminal convictions of a witness when offered to impeach that witness by proving character for untruthfulness. United States v. Norton, 26 F.3d 240, The 243 (1st Cir. 1994). rule does not govern the introduction of prior convictions offered to contradict specific testimony. Norton, 26 F.3d at 243-44; United States v. Leavis, 853 F.2d 215, 220 (4th Cir. 1988). Accordingly, when Troupe testified that he was not and never had been a drug dealer, Rule 609 did not prohibit thirteen-year-old the Government conviction for from possession introducing with his intent to distribute cocaine to contradict Troupe s claim. Finally, Troupe asserts that the sentence imposed by the district court was unreasonable miscalculated his guideline range. This applying an court abuse reviews of a because the court The Government agrees. sentence discretion for standard. reasonableness, Gall v. United States, 128 S. Ct. 586, 597 (2007); see also United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). The appellate court first must ensure that the trial court did not commit any procedural error, such as failing to calculate (or improperly 4 calculating) mandatory, [(2006)] the Guideline failing factors, to range, consider selecting treating the a [18 sentence the Guidelines U.S.C.] based as § 3553(a) on clearly erroneous facts, or failing to adequately explain the chosen sentence--including an explanation for any deviation from the Guideline range. Gall, 128 S. Ct. at 597. If the court finds the sentence to be procedurally sound, it then considers the substantive reasonableness of the sentence, consideration the totality of the circumstances. taking into Id. Troupe received a base offense level of twenty-four under U.S. Sentencing Guidelines Manual § 2K2.1(a)(2) (2006). The guidelines establish a base offense level of twenty-four if the defendant committed any part of the subject offense after sustaining at least two felony convictions of either a crime of violence or § 2K2.1(a)(2). a controlled substance offense. USSG The application notes direct that only felony convictions that are assigned criminal history points under USSG § 4A1.1(a), (b), or (c) should count for determining the base offense level under USSG § 2K2.1. USSG § 2K2.1 cmt. (n.10). One of the convictions used to establish Troupe s base offense level was a conviction for possession of cocaine with intent to distribute, which is not included within USSG § 4A1.1(a), (b), or (c). offense Accordingly, the district court erred by counting this in establishing Troupe s 5 base offense level. Without this error, Troupe s base offense level would have been twenty instead of twenty-four. Troupe s USSG § 2K2.1(a)(4)(A). offense level also was increased by four levels pursuant to USSG § 2K2.1(b)(6) for possessing the firearm in connection with However, where, § 924(c) offense another as here, in felony, the addition namely defendant to the drug is distribution. convicted § 922(g) § 2K2.1(b)(6) enhancement does not apply. of offense, a the USSG § 2K2.4 cmt. (n.4) With placement in a corrected criminal base history offense category level VI, of twenty Troupe s and properly calculated guideline range would have been seventy to eightyseven months imprisonment, rather than the 140 to 175 month guideline range calculated by the district court. By failing to properly calculate Troupe s guideline range, we hold that the district court committed significant procedural error. United States v. Matamoros-Modesta, 523 F.3d 260, 263 (4th Cir. 2008). We therefore conclude that the sentence imposed by the district court is unreasonable. Accordingly, we affirm Troupe s convictions, vacate his sentence and remand for resentencing. but We dispense with oral argument because the facts and legal contentions are 6 adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED IN PART; VACATED AND REMANDED IN PART 7

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