US v. Lewis Hardy, No. 08-4172 (4th Cir. 2009)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4172 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. LEWIS R. HARDY, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Walter D. Kelley, Jr., District Judge. (2:07-cr-00120-WDK-JEB-1) Submitted: March 27, 2009 Decided: April 17, 2009 Before GREGORY, SHEDD, and DUNCAN, Circuit Judges. Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion. Michael S. Nachmanoff, Federal Public Defender, Frances H. Pratt, Keith Loren Kimball, Assistant Federal Public Defenders, Norfolk, Virginia, for Appellant. D. Monique Broadnax, Special Assistant United States Attorney, Norfolk, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Lewis R. Hardy was convicted after a jury trial of conspiracy to possess with intent to distribute heroin and cocaine base ( crack ), in violation of 21 U.S.C. §§ 841(a)(1), 846 (2006); possession with intent to distribute heroin and crack, in violation of § 841(a)(1); possession with intent to distribute heroin and crack within 1000 feet of a school, in violation of 21 U.S.C. §§ 841(a)(1), 860 (2006); and possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c) (2006). a total of 185 months imprisonment Hardy was sentenced to and now appeals. His attorney has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967). We affirm Hardy s Hardy has filed a pro se supplemental brief. * conviction, but vacate the sentence, and remand for resentencing. In the Anders brief, counsel first questions whether the evidence was sufficient to prove that Hardy possessed the narcotics within 1000 feet of a school. A defendant challenging the sufficiency of the evidence faces a heavy burden. United States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997). * The In his pro se brief, Hardy questions the validity of the indictment and the district court s refusal of the jury s request to review the transcript of four witnesses testimony. We have considered Hardy s arguments in light of the applicable legal standards and find the claims to be without merit. 2 verdict of a jury must be sustained if, viewing the evidence in the light most favorable to the prosecution, supported by substantial evidence. F.3d 209, 216 (4th Cir. 2006). evidence that a reasonable the verdict is United States v. Smith, 451 [S]ubstantial evidence [i]s finder of fact could accept as adequate and sufficient to support a conclusion of a defendant s guilt beyond a reasonable doubt. Id. Reversal for insufficient evidence is reserved for the rare case where the prosecution s failure is clear. Beidler, 110 F.3d at 1067 (internal quotation marks and citation omitted). We have reviewed the record and find that it contains sufficient within evidence 1000 feet to of prove a that school. Hardy The possessed proper the drugs measurement of distance for purposes of § 860 is a straight line; that is, an as the crow flies measurement. See, e.g., United States v. Henderson, 320 F.3d 92, 103 (1st Cir. 2003). In this case, the distance from the location where Hardy possessed the drugs and the school was requirement. only 450 feet, Furthermore, evidence, the jury sufficient to support reasonable doubt. could well since have Hardy s within Hardy failed reasonably guilt on § 860 s this to 1000-foot rebut accepted charge this it as beyond a Cf. United States v. Glover, 153 F.3d 749, 755 & n.5 (D.C. Cir. 1998) (finding evidence sufficient where an 3 officer offered uncontested testimony that he measured the distance himself). Counsel next questions whether the district court committed plain error in calculating Hardy s criminal history category under the guidelines. in an Anders meritorious. brief, Although this issue is presented counsel concludes that it is, in fact, Counsel acknowledges, however, that he failed to object to the guidelines calculation before the district court. Because this issue was not raised below, we review for plain error. See Fed. R. Crim. P. 52(b); United States v. Olano, 507 U.S. 725, 731-32 (1993). To prevail on a claim of unpreserved error, Hardy must show that error occurred, that it was plain, and that it affected his substantial rights. 732. to Olano, 507 U.S. at Furthermore, this court will not exercise its discretion correct fairness, such error integrity proceedings. or at Id. unless it public 732 seriously reputation (internal affect[s] of quotation the judicial marks and citations omitted). In calculating a defendant s criminal history category under the guidelines, two points are added for each conviction for offenses that occurred prior to the defendant turning eighteen that resulted in a period of confinement for more than sixty days, from which the defendant was released within five years of the present offense conduct. 4 See U.S. Sentencing Guidelines Manual ( USSG ) § 4A1.2(d)(2)(A) (2007). Furthermore, the guidelines provide that prior sentences are to be counted separately between the offenses. intervening arrest, if there are any intervening See USSG § 4A1.2(a)(2). prior sentences are arrests If there is no counted separately unless (A) the sentences resulted from offenses contained in the same charging instrument; or (B) the sentences were imposed on the same day. Id. If there was no intervening arrest and either of those conditions is met, the prior sentences are to be counted as a single sentence in calculating a defendant s criminal history category. In this case, Hardy s criminal history contained three separate juvenile guidelines However, to there offenses receive were that two no met the criminal intervening criteria history under the points between arrests each. these offenses, and Hardy was sentenced for all three on the same day. Therefore, these sentences should have been counted as a single prior sentence. The district court instead counted them separately, resulting in a total of four criminal history points being erroneously criminal history applicable attributed category guidelines to from range Hardy. III from to This IV increased his and increased his eighty-seven to imprisonment to 100 to 125 months imprisonment. that this constituted plain error 5 that 108 months We conclude affected Hardy s substantial rights and that should be noticed on appeal. See United States v. Ford, 88 F.3d 1350, 1355-56 (4th Cir. 1996). We have examined the entire record in this case in accordance with the requirements of Anders and have found no other meritorious Hardy s issues conviction, for vacate appeal. his We sentence, therefore and affirm remand for resentencing. See Gall v. United States, 128 S. Ct. 586, 597 (2007). further We transcripts. writing, of deny Hardy s motion for grand jury This court requires that counsel inform Hardy, in the right to petition United States for further review. the Supreme Court of the If Hardy requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move in this court for leave to withdraw from representation. Counsel s motion must state that a copy thereof was served on Hardy. We dispense with oral contentions argument adequately because presented in the the facts and materials legal before the court are and argument would not aid the decisional process. AFFIRMED IN PART, VACATED IN PART, AND REMANDED 6

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