US v. Morales, No. 07-4151 (4th Cir. 2008)
Annotate this CaseThis opinion or order relates to an opinion or order originally issued on November 13, 2007.
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-4151 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ANDRES MORALES, Defendant - Appellant. On Remand from the Supreme Court of the United States. (S. Ct. No. 07-8902) Submitted: October 28, 2008 Decided: December 1, 2008 Before NIEMEYER, MICHAEL, and KING, Circuit Judges. Affirmed by unpublished per curiam opinion. Barron M. Helgoe, VICTOR VICTOR & HELGOE LLP, Charleston, West Virginia, for Appellant. Charles T. Miller, United States Attorney, Joshua C. Hanks, Assistant United States Attorney, Charleston, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: On Morales s November conviction 13, 2007, and this court sentence. See affirmed United Andres States v. Morales, 253 F. App x 287 (4th Cir. 2007) (No. 07-4151). On June 9, 2008, the Supreme Court granted Morales s petition for a writ of certiorari, vacated this court s judgment and remanded to this court for further consideration in light of Gall v. United States, 128 S. Ct. 586 (2007). Having reconsidered Morales s sentence in light of Gall and this court s decisions interpreting Gall, we find no reversible error. Accordingly, we affirm. Andres Morales was convicted by a jury of one count of conspiracy U.S.C. § to 846 distribute (2000). methamphetamine, The in Presentence violation of Investigation 21 Report recommended an offense level of forty-two, which included a drug weight of between 9.92917 and 11.430 kilograms (net weight) as well as enhancements for possession of a firearm, aggravated role in the Sentencing offense, Guidelines (c)(2); 3B1.1(c); criminal history category II. and obstruction Manual 3C1.1 ( USSG ) (2006). points, placing of justice. §§ 2D1.1(a)(3), Morales him See in was (b)(1), assessed criminal U.S. three history The resulting advisory Guidelines range was 360 months to life imprisonment. See USSG Ch. 5, Pt. A (2006) (sentencing table). 2 While Morales agreed with the probation officer s calculations, he objected generally to the basis upon which they were found. objections finding to that evidence. (2006) The district court, however, overruled Morales s the drug weight and they were supported by enhancements a based preponderance on of a the After discussing the relevant 18 U.S.C. § 3553(a) factors, the court sentenced Morales to 360 months imprisonment. On appeal, Morales first contends that the district court erred in admitting expert witness testimony. We review the admission of expert testimony for an abuse of discretion. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999). Before permitting expert testimony, the district court must determine that the testimony is both reliable and relevant and will assist the trier of fact in understanding or determining a fact in issue in the case. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592-93 (1993). Prior to his qualification as an expert witness, Minh Dang testified that: he was employed for approximately ten years as a forensic chemist with the Drug Enforcement Administration ( DEA ); he received a Bachelor of Science degree in biochemistry from California Polytechnic University and a Master of Science degree in chemical toxicology from George Washington University; he completed a nine month training course for the 3 analysis and a of controlled course on substances, methamphetamine, clandestine investigating including methamphetamine laboratories; during his term of employment with the DEA, he has chemically analyzed substances to determine whether they contain a controlled specifically substance, involving including between methamphetamine; 700 and and he 800 has tests testified approximately thirty times in prior criminal cases. Dang s testimony, cross-examination, protocols which included performed to the assure was tests subjected used as accuracy. His to vigorous well as inability the to respond to some of the detailed questions proffered on crossexamination is relevant to the weight of Dang s testimony rather than to its admissibility. See United States v. Moreland, 437 F.3d 424, 431 (4th Cir. 2006). court did not abuse its Thus, we conclude the district discretion by admitting Dang s testimony. Morales next contends that several of the court s rulings on evidentiary issues were improper. district We review a district court s decision regarding the admission or exclusion of evidence for abuse of discretion. United Lancaster, 96 F.3d 734, 744 (4th Cir. 1996). abused only when irrationally. Cir. 1994) a district court has States v. Such discretion is acted arbitrarily or United States v. Moore, 27 F.3d 969, 974 (4th (internal quotation 4 marks and citation omitted). However, evidentiary rulings based on erroneous legal conclusions are by definition an abuse of discretion. United States v. Turner, 198 F.3d 425, 430 (4th Cir. 1999). The evidence presented at trial established that Morales supplied methamphetamine to several distributors in the southern portion of West Virginia. On one occasion, a cooperating witness aided investigators by placing a monitored call to Morales s controlled buy. cell phone at the chosen Two vehicle. packages methamphetamine an effort to schedule a The buy was ultimately scheduled, and a date and location were appointed. arrived in were Dannie Fraley, a co-conspirator, location of in what retrieved by Morales s was girlfriend s determined officers from the to be vehicle. Fraley testified that he was sent by Morales to execute the deal. Morales (1) excluding argues testimony that the district regarding Fraley s court erred niece s by: alleged methamphetamine addiction; (2) admitting testimony from Fraley s girlfriend regarding whether Fraley would hide his drug use from her; (3) admitting a photograph of the interior of Morales s girlfriend s vehicle in which a child s car seat was visible; and (4) admitting testimony regarding Morales s personal life. He further argues that the district court erred in denying his post-trial motion for a new trial in light of the cumulative 5 effect of these errors. When viewed in the context of the trial, the district court s rulings were neither arbitrary nor irrational. Moreover, even if the rulings were erroneous, such error would nevertheless be harmless in light of the evidence adduced at trial to establish Morales s guilt. Finally, Morales contends that the imposition of a sentence within the calculated Guidelines range is unreasonable. When determining a sentence, the district court must calculate the appropriate advisory Guidelines range and consider it in conjunction with the factors set forth in 18 U.S.C. § 3553(a). Gall, 128 S. Ct. at 596. imposition of a Appellate review of a district court s sentence, whether inside, just outside, or significantly outside the Guidelines range, is for abuse of discretion. Id. at 591. Sentences within the applicable Guidelines range may be presumed by the appellate court to be reasonable. United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). The district court followed the necessary procedural steps in sentencing Sentencing Guidelines Morales, as appropriately advisory, properly treating calculating the and considering the applicable Guidelines range, and weighing the relevant § 3553(a) factors. Furthermore, we may presume Morales s sentence, which is at the low end of the applicable 6 Guidelines range and below the statutory maximum, to be reasonable. To innocence the and enhancements properly extent argue should found Morales that have each his objections been sustained, sentencing factor 65, testimony 72 (4th Cir. presented at to to maintain the his sentencing the district be supported to court by a See United States v. Morris, 429 preponderance of the evidence. F.3d continues 2005). Morales s sentencing is challenge likewise to unavailing, the as witness credibility is the sole province of the factfinder and will not be reassessed on appeal. See Saunders, 886 F.2d 56, 60 (4th Cir. 1989). United States v. Thus, we conclude that the district court did not abuse its discretion in imposing the chosen sentence. Accordingly, we affirm the judgment of the district court. legal before We dispense with oral argument because the facts and contentions the court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 7
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