US v. Howard McCall, No. 08-4241 (4th Cir. 2009)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4241 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. HOWARD EDWARD MCCALL, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Frank D. Whitney, District Judge. (3:05-cr-00104-FDW-CH-16) Submitted: October 27, 2009 Decided: November 20, 2009 Before NIEMEYER, GREGORY, and SHEDD, Circuit Judges. Affirmed by unpublished per curiam opinion. David W. Long, POYNER SPRUILL, LLP, Raleigh, North Carolina, for Appellant. Amy Elizabeth Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Following a lengthy trial, Howard Edward McCall was convicted by a jury of conspiracy to possess with intent to distribute and to distribute cocaine violation of 21 U.S.C. § 846 (2006). and cocaine base, in McCall was sentenced to See 21 U.S.C.A. the statutory mandatory minimum of 240 months. § 841(b)(1)(A) (West 1999 & Supp. 2009) (prescribing twenty-year minimum for cases involving fifty grams or more of a mixture or substance containing a detectable amount of cocaine base and a prior felony drug conviction). Finding no error, we affirm. Appellate counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), in which he asserts there are no meritorious issues for appeal but questions whether the district court erred in denying the Fed. R. Crim. P. 29 motion for judgment of acquittal and in denying the Fed. R. Crim. P. 33 motion for new trial. McCall filed a pro se supplemental brief, challenging his sentence. The Government elected not to file a responsive brief. Initially, counsel contends that the district erred in denying the motion for judgment of acquittal. court Counsel argues that the evidence was insufficient to support the jury s verdict. We review de novo the district court s denial of a Rule 29 motion for judgment of acquittal. Perkins, 470 F.3d 150, 160 (4th Cir. 2006). 2 United States v. In conducting such review, we must uphold a jury verdict if there is substantial evidence, viewed in the light most favorable to the Government, to support it. Id. Both direct and circumstantial evidence are considered, and the government is permitted all reasonable inferences that could be drawn in its favor. Harvey, 532 F.3d 326, 333 (4th Cir. 2008). carry an imposing burden to sufficiency of the evidence. United States v. The defendant must successfully challenge the United States v. Martin, 523 F.3d 281, 288 (4th Cir.) (citation omitted), cert. denied, 129 S. Ct. 238 (2008). With these standards in mind, our thorough review of the trial transcript convinces us that McCall was involved in a loosely-knit association of members linked . . . by their mutual interest in sustaining the overall enterprise of catering to the ultimate demands of market Mecklenburg County. a particular drug consumption United States v. Burgos, 94 F.3d 849, 858 (4th Cir. 1996) (en banc) (quoting United States v. Banks, 10 F.3d conspiracies 1044, are 1054 executed (4th Cir. 1993)). with precision, [W]hile the fact many that a conspiracy is loosely-knit, haphazard, or ill-conceived does not render it any less a conspiracy or any less unlawful. We therefore conclude that support the jury s verdict. F.3d 220, 225-26 (4th there was sufficient evidence Id. to See United States v. Yearwood, 518 Cir.) (discussing 3 elements of the offense), cert. denied, 129 S. Ct. 137 (2008). To the extent McCall argues that the Government s case rested in large part on the unreliable testimony of the cooperating witnesses, it is not the province of this court to second-guess determinations of the factfinder. the credibility See United States v. Wilson, 484 F.3d 267, 283 (4th Cir. 2007). Counsel also contends that the district court erred in denying the motion for new trial. We review a district court s order granting or denying a motion for new trial under Rule 33 United States v. Fulcher, 250 F.3d for abuse of discretion. 244, 249 providing conclude (4th Cir. 2001) standard). that the Our (stating review district of court standard the of record correctly review leads us determined and to the defendant failed to satisfy each of the Fulcher requirements. Therefore, the district court did not abuse its discretion in denying the motion for new trial. McCall contends in his pro se supplemental brief that his sentence is unreasonable. district court must When determining a sentence, the calculate the appropriate advisory Guidelines range and consider it in conjunction with the factors set forth in 18 U.S.C. § 3553(a) (2006). Gall v. United States, 552 U.S. 38, __, 128 S. Ct. 586, 596 (2007). district court must place on the record an Further, the individualized assessment [of the § 3553(a) factors] based on the particular 4 facts of the case before it. United States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009) (internal quotation marks and citation omitted). a Appellate review of a district court s imposition of sentence, outside the 128 Gall, inside, Guidelines S. calculated court. whether Ct. at Guidelines just range, outside, is for 591. A sentence range is presumed or abuse significantly of within discretion. the reasonable properly by this United States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007). The district court followed the necessary procedural steps in sentencing McCall, appropriately treating the Guidelines as advisory, properly calculating and considering the applicable Guidelines range, and applying the § 3553(a) factors to the facts of the case. McCall s 240-month sentence, which is the Guidelines range and the statutory mandatory minimum, is also presumptively reasonable. However, McCall argues that the 1995 state conviction used for enhancement under 21 U.S.C. § 851 (2006) was obtained in violation of his constitutional protection from double jeopardy because he was allegedly assessed a drug tax in North Carolina prior to conviction. Since McCall did not challenge his sentence on this basis in the district court, review is for plain error. 916 (8th See, e.g., United States v. Miller, 557 F.3d 910, Cir. 2009) ( Procedural 5 sentencing errors are forfeited, and therefore may be reviewed only for plain error, if no objection was raised in the district court. ). To establish plain error, the defendant must show that an error occurred, that the error was plain, and that the error affected the defendant s substantial rights. United States v. Olano, 507 U.S. 725, 732-34 (1993); United States v. Massenburg, 564 F.3d 337, 342-43 (4th Cir. 2009) (stating defendant bears burden of establishing each of the plain error requirements). McCall has failed to establish each of the plain error requirements, which is his burden. Therefore, we conclude that the district court did not abuse its discretion in imposing the chosen sentence. In accordance with Anders, we have reviewed the entire record in this case and have found no meritorious issues for appeal. court. Accordingly, we affirm the judgment of the district This court requires that counsel inform his client, in writing, of his right to petition United States for further review. the Supreme Court of the If the client requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move this court for leave to withdraw from representation. Counsel s motion must state that a copy thereof was served on the client. We dispense with oral contentions argument because the facts 6 and legal are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 7

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