US v. Travis Ramseur, No. 08-4907 (4th Cir. 2010)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4907 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. TRAVIS DORAN RAMSEUR, a/k/a 50, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Statesville. Richard L. Voorhees, District Judge. (5:05-cr-00009-RLV-DCK-21) Argued: March 26, 2010 Decided: May 13, 2010 Before MOTZ, KING, and DUNCAN, Circuit Judges. Affirmed by unpublished opinion. Judge Duncan opinion, in which Judge Motz and Judge King joined. wrote the ARGUED: Nathan J. Taylor, ANDERSON TERPENING, PLLC, Charlotte, North Carolina, for Appellant. Amy Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee. ON BRIEF: William R. Terpening, ANDERSON TERPENING, PLLC, Charlotte, North Carolina, for Appellant. Edward R. Ryan, Acting United States Attorney, Charlotte, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. DUNCAN, Circuit Judge: Appellant Travis Ramseur ( Ramseur ) appeals his conviction and sentencing for conspiracy to possess with intent to distribute cocaine, cocaine base, and marijuana in violation of 18 U.S.C. § 846. He challenges the district court s decision not to declare a mistrial after a witness mentioned a murder charge during examination, as well as its decision to apply a sentencing enhancement under U.S.S.G. § 2D1.1(d). Constrained by the applicable standards of review, we affirm. I. During the course of Ramseur s four-day trial and four-day sentencing hearing, the government presented evidence composed largely of witness testimony. of the needed. relevant facts, but We provide a general recitation focus on particular testimony as We set forth the facts in the light most favorable to the government, the prevailing party below. United States v. Mehta, 594 F.3d 277, 279 (4th Cir. 2010). A. Between 1999 and 2004, Rickie Eckles ( Eckles ) ran a drug distribution operation in Carolina, in Iredell County. individuals and large and around Statesville, North The operation involved dozens of quantities 2 of cocaine, crack, and marijuana. Sometime association with in the Ramseur, early through 2000s, which Eckles Ramseur formed an bought bulk coconspirators were quantities of drugs and resold them on the street. After Eckles indicted, in substantial and their thirty-five quest assistance, for he roles other sentence and and seven reductions others extensive based testified involvement on about Ramseur s various in the venture. 1 Also, Detective David Ramsey of the Iredell County Sheriff s Office testified about his in-depth investigation of Ramseur. Detective while bought he Ramsey drugs conducted from surveillance Eckles, listened of to Ramseur numerous wiretapped phone conversations in which Ramseur talked about his drug trafficking, and personally interviewed every cooperating witness prior cumulative to their testimony involvement: it made testifying painted out a the at Ramseur s detailed amounts picture of trial. of cocaine, This Ramseur s crack, and marijuana Ramseur purchased; the individuals in the conspiracy whom he worked with to sell drugs; and the time period, beginning as early as 1996, during which he trafficked in the Statesville area. 1 The government produced one additional witness at trial who was not indicted as part of the Eckles conspiracy, but who had personal knowledge of Ramseur s activity. 3 During the course of Eckles s examination, he was asked when he began selling drugs to Ramseur. Eckles first said he began dealing with Ramseur in 2000 or 2001, but later said it was in 2003. He maintained, however, that he stopped selling to Ramseur in November 2004. sure about when he When defense counsel asked if he was stopped selling to Ramseur, Eckles said, [m]y last time I dealt with him was the time -- if that was the time when the murder charge -- that s the last time. J.A. 187. Defense counsel moved to strike this comment, and the district court granted the motion. the jury, remark. [m]embers Strike it. The jury U.S.C. § 846. of The district court also instructed the jury, don t consider the last Id. convicted Ramseur of the sole count under 18 In special verdicts, it attributed to Ramseur the maximum amount of crack and cocaine charged by the government, 50 grams or more of a mixture and substance containing a detectable amount of cocaine base and 5 kilograms or more of a mixture and substance containing a detectable amount of powder cocaine. J.A. 948. However, the jury attributed only the minimum amount of marijuana that they had been asked to find, less than 50 kilograms. J.A. 949. 4 B. Prior to Ramseur s sentencing hearing, the United States Probation Office calculating ( Probation ) Ramseur s U.S.S.G. § 2D1.1. prepared recommended a presentence guidelines report, sentence under Based on his involvement in the conspiracy, Ramseur s offense level was 36. Probation determined, however, that Ramseur was also directly responsible for three murders and so, under § 2D1.1(d), cross-referenced § 2A1.1 and assigned Ramseur an offense level of 43. 2 Ramseur filed an objection to the application of § 2D1.1(d). In response, the government sought to establish that was Ramseur responsible for three murders, during the course of the conspiracy . . . [and] in furtherance of a drug conspiracy. J.A. 963. In so doing, the government again relied predominately on the testimony of cooperating witnesses. The first murder occurred on May 25, 2001, on Wilson Lee Boulevard (the Wilson Lee Boulevard murder). This murder grew out of a theft of drug proceeds by a dealer named Nakia White. Demetrius Thompson, another dealer who did not receive a portion 2 Section 2D1.1(d) provides, [i]f a victim was killed under circumstances that would constitute murder under 18 U.S.C. § 1111 . . . [one must] apply § 2A1.1 (First Degree Murder) or § 2A1.2 (Second Degree Murder), as appropriate. The base offense level for § 2A1.1 is 43. 5 of the stolen proceeds to which he felt entitled, prevailed upon Ramseur, who was known for possessing a number of firearms and for using violence against retaliating for the slight. with Roxanne Roxanne s Myers, and process. Eckles shot of along into dealers, to assist in The two knew that White sold crack out apartment, rival her with it, apartment, and so went Eckles-coconspirator killing John Lewis Davis to O Kiera in the A week later, Ramseur returned and fired into the apartment again, but did not manage to harm anyone. The other murders occurred in November 2004, on Brevard Street (the Brevard Street murders). At the time, victims Angelo Stockton and Timothy Cook, rival dealers in Statesville, had been engaged in a longstanding feud with Ramseur and his associates. Because of the feud, gunfire had been exchanged on several occasions. Cook, and their Ramseur s associates had shot at Stockton, associates, and Ramseur had shooting up a house, seeking to kill them. 2004, Stockton and Cook encountered participated in On November 16, several of Ramseur s associates at a drinking establishment, and a fight ensued. In the course of the fight, three of Ramseur s associates, two of whom were because named they in knew the he Eckles possessed conspiracy, numerous summoned firearms. Ramseur Ramseur collected Al Bellamy, an associate and member of the conspiracy, and drove to the drinking establishment, where they encountered 6 Cook and Stockton outside. Ramseur and Bellamy shot and killed both. At the sentencing hearing, the three associates who summoned Ramseur to Brevard Street testified about the event. Though each had personal knowledge of these murders, two said that they did not know the reason for the underlying feud, and the third said it was [j]ust some beef about like neighborhoods or something. J.A. 1277. Other cooperators who testified about their knowledge of the murders similarly disclaimed any knowledge of the source of the feud. The government was able to provide an explanation, however, by calling to the stand Tyrone Brandon, who had been convicted of unrelated charges of drug distribution in the Statesville area. Brandon had been incarcerated with Al Bellamy in county prison after the murders occurred, and testified to what Bellamy told him about them: Q: [D]id [Bellamy] tell you what the argument was over? A: He told me it was over drugs. Q: Did he also tell you that other people thought it was over a girl, but it was really over drugs? A: Yes ma am. Q: Did he describe in what way it was over drugs or he just told you it was over drugs? A: He said that [Stockton] refused to pay [Cary Phifer] for the drugs that [Cary] had fronted him to sell. 7 J.A. 1413-14. At the conclusion of the hearing, the district court overruled Ramseur s objection to the application of § 2D1.1(d), finding that Ramseur was directly accountable for the Wilson Lee Boulevard and Brevard Street murders. J.A. 1783-84. The district court adopted Probation s recommendation, and sentenced Ramseur to life imprisonment. He now appeals. II. On appeal, sentencing. Ramseur challenges his conviction and his Ramseur contends that the district court should have declared a mistrial after Rickie Eckles referenced a murder charge while testifying about Ramseur s involvement in the drug conspiracy. Ramseur further contends that his sentence should be vacated because the district court erred in finding that the murders of Davis, Cook, and Stockton were relevant conduct under U.S.S.G. § 1B1.3, and thus § 2D1.1(d) sentencing enhancement. 3 grounds for applying the We consider these arguments in turn. 3 We are aware that the district court is obligated to consider evidence of relevant conduct under U.S.S.G. § 1B1.3, United States v. Hayes, 322 F.3d 792, 801 (4th Cir. 2003), and that in this case, the district court did not make its determinations explicit. Ramseur, however, does not argue that (Continued) 8 A. We first consider Ramseur s challenge to his conviction. Ramseur argues that Eckles s comment was prejudicial to the point that the district court had to dismiss the jury, because the comment informed them of highly damaging information about Ramseur that did not relate to the drug charge for which he was being tried. Because Ramseur did not move for a mistrial below, we review the district court s decision not to declare one sua sponte for plain error. See United States v. Castner, 50 F.3d 1267, 1272 (4th Cir. 1995). A criminal defendant suffers sufficient prejudice to warrant a new trial if there is a reasonable possibility that the jury s verdict was improperly came before it. influenced by the material that United States v. Barnes, 747 F.2d the district court failed to consider § 1B1.3. This is probably so because the district court responded to the government s stated intention of proving that the murders were committed during . . . [and] in furtherance of a drug conspiracy, J.A. 963, by finding that Ramseur was directly responsible for the murders, J.A. 1783-84. This finding clearly indicates that the district court found the conduct relevant under § 1B1.3. Accordingly, although it would have been preferable for the district court to make an express finding of relevance, because the record clearly demonstrates considerations relevant to § 1B1.3, we will not find clear error on these facts based on a failure to consider that guideline. 9 246, 250 (4th omitted). In Cir. 1984) (internal the context of quotations witness and testimony, citation sufficient prejudice does not exist if, despite the testimony, the jury could make individual guilt determinations court s cautionary instructions. by following the United States v. West, 877 F.2d 281, 288 (4th Cir. 1989), cert denied, 493 U.S. 959 (1989). When considering determinations whether by the following jury the could court s make individualized instructions, several factors are relevant: (1) whether the prosecutor sought to bring out the comment and, if so, whether that was with an improper purpose; (2) whether the district court s instruction sufficiently informed the jury that it could not consider the testimony; (3) whether the jury s verdict fairly implies that it was not influenced by the testimony; and (4) the weight of the evidence. United States v. Dorsey, 45 F.3d 809, 817-18 (4th Cir. 1995). As a threshold matter, we are unconvinced that Eckles s comment could be considered prejudicial. Eckles stated, [m]y last time I dealt with him was the time -- if that was the time when the murder charge -- that s the last time. J.A. 187. This comment does not provide any insight into who was charged with a murder. Upon hearing it, all the jury could infer is that Eckles sold drugs to Ramseur until the time that a murder 10 charge interrupted their association. This inference, standing alone, is hardly prejudicial to Ramseur. Furthermore, even if Eckles s comment had the power to prejudice Ramseur, under the Dorsey factors, Ramseur has failed to show that the comment was sufficiently prejudicial to warrant a mistrial. First, as Eckles was responding to defense counsel, there is no evidence here that the prosecutor sought to bring out the comment, which means the prosecutor did not attempt to mislead the jury. Where the prosecutor cannot be held accountable for the comment, we customarily find insufficient prejudice to warrant a mistrial. F.2d 194, 197 (4th Cir. 1979). United States v. Johnson, 610 Second, the district court ably addressed Eckles s comment, giving the jury a firm, immediate instruction that they could not consider it. verdict demonstrates Eckles s comment. that the jury was Third, the jury s not influenced by The jury could have attributed the maximum amount of marijuana to Ramseur but did not, thereby evidencing that it paid attention to the evidence and not the comment. Fourth, the weight of the evidence clearly establishe[d] all the facts United (1940). necessary States v. for proof of the Socony-Vacuum Oil Co., illegal 310 conspiracy. U.S. 150, 235 Notably, Ramseur did not argue that the evidence was insufficient to convict him, thereby conceding that the jury had enough to rely upon in its deliberation. 11 Accordingly, we find that the district court committed no error when it did not order a mistrial. B. We turn now to Ramseur s challenges to his sentencing. He argues that the district court erred when enhancing his offense level under U.S.S.G. § 2D1.1(d) because it based the enhancement on murders that were not relevant to his crime of conviction under § 1B1.3. We review the district court s legal conclusions de novo and its factual findings for clear error. v. Martinez-Melgar, 591 F.3d 733, 737 (4th United States Cir. 2010). As Ramseur s arguments concern whether the murders applied under § 2D1.1(d) are relevant conduct within the meaning of § 1B1.3, we begin with a brief discussion of these provisions. If an individual being sentenced under § 2D1.1 has committed a crime that would constitute murder under 18 U.S.C. § 1111 within enhance order to murders district the do are federal jurisdiction, offense-level so, the relevant court first calculation district within court the determines the under must meaning the district scope court § 2D1.1(d). determine that of § 1B1.3. of the may In the The underlying relevant conduct based on all acts and omissions committed, aided [and] abetted . . . that were part of the same course of conduct or common scheme or plan as the offense of conviction. 12 See § 1B1.3(a)(1)(A), (2). A murder is then relevant if it occurs during and in furtherance of the crime of conviction, or conduct that is part of a same course of conduct or common scheme or plan as the crime of conviction. See United States v. Pauley, 289 F.3d 254, 259 (4th Cir. 2002). When determining if conduct is part of a common scheme or plan or of the same course of conduct, we apply a fairly straightforward test. Pauley, 289 F.3d at 259. We consider: such factors as the nature of the defendant s acts, his role, and the number and frequency of repetitions of those acts, in determining whether they indicate a behavior pattern. The significant elements to be evaluated are similarity, regularity and temporal proximity between the offense of conviction and the uncharged conduct. Although an appellate court cannot formulate precise recipes or ratios in which these components must exist in order to find conduct relevant, a district court should look for a stronger presence of at least one of the components if one of the components is not present at all. If the uncharged conduct is both solitary and temporally remote, then there must be a strong showing of substantial similarity. Id. (quoting United States v. Mullins, 971 F.2d 1138, 1144 (4th Cir. 1992). With this framework in mind, we consider Ramseur s arguments. 13 We limit our consideration to the Brevard Street murders. 4 Ramseur does not contest that he committed these murders during his crime of conviction. district court relied on Rather, he contends only that the insufficient evidence to find them relevant, because it relied on the statements of Tyrone Brandon, a witness who testified that the murders occurred because Stockton refused to pay Ramseur s associate, Cary Phifer, for drugs Phifer had fronted Stockton. First, Ramseur argues that Brandon was not a credible witness because he was a felon [who testified] . . . with an expectation of a reduction in sentence, Appellant s Br. at 27, and so could not provide a reliable explanation as to why Ramseur killed Stockton and Cook. Second, Ramseur argues that Brandon s hearsay testimony could not be used to find the murders relevant because other witnesses testified from personal knowledge that the murders were not drug-related. Ramseur s first argument is a challenge to the district court s credibility determination on determination we can scarcely reverse. 4 Brandon, a kind of As we have said, when a Section 2D1.1(d) requires only a single murder to support the cross-reference. Accordingly, because we find that the district court did not clearly err in concluding that the Brevard Street murders were relevant conduct, we need not consider the Wilson Lee Boulevard murder. 14 district court s factual finding is based upon assessments of witness credibility, such finding is deserving of the highest degree of appellate deference. United States v. Thompson, 554 F.3d 450, 452 (4th Cir. 2009) (internal quotations omitted). Ramseur provides no compelling reason why we should not apply that level of deference here. Not only is it accepted practice for the government to produce cooperating witnesses at trial -so much so that § 5K1.1 of the Sentencing Guidelines provides a means to decide how much credit cooperators should receive -but Ramseur does not even complain about the credibility of the other cooperating witnesses, who all were in the same position as Brandon. Moreover, the district court had the opportunity to hear Brandon s testimony, as well as defense counsel s effort to impeach him on cross-examination. In such circumstances, the district court s credibility determination is not reversible. Ramseur also fails to show that the district court erred by finding witnesses facts who based on testified Brandon s from hearsay personal instead of knowledge. At those the sentencing stage, the district court is entitled to hear any relevant information, so long as it bears sufficient indicia of reliability to support its probable accuracy. Hernandez-Villanueva, 473 F.3d 118, 122 (internal quotations and citation omitted). United States v. (4th Cir. 2007) The district court may find hearsay sufficiently reliable, and rely on it to find 15 facts. See United States v. Carter, 300 F.3d 415, 427 (4th Cir. 2002). The hearsay can come from any source, even convicted felons seeking Johnson, 489 a sentence F.3d 794, reduction. 797 (7th See Cir. United 2007) States ( [T]he v. district court may credit testimony that is totally uncorroborated and comes from an admitted liar, convicted felon, or large scale drug-dealing, paid government informant. ) (internal quotations and citations omitted). by the witnesses Here, the differing rationales offered required the district court to resolve a question of fact based on whose testimony ought to be credited, and it was not error for the district court to rely on Brandon in resolving that issue. See Carter, 300 F.3d at 425. In particular, the district court did not err here because, as Ramseur effectively concedes, it did not have to resolve any real conflicts in the witness testimony. present on Brevard Street had The witnesses who were personal knowledge about murders, but not the cause of the feud underlying them. one actually suggested a rationale that the feud was about territory. different from the Only Brandon s, This explanation, however, could well be construed as drug-related. The district court therefore heard alternative testimony that the source of the feud was unknown, or that it was for a reason that could also be about drugs. Neither explanation 16 logically precludes the finding that drugs were, at minimum, record supports a principal reason underlying the murders. In this case, the a determination that these murders were committed in furtherance of Ramseur s crime of conviction, § 1B1.3. and so were relevant within the meaning of The district court therefore did not clearly err by enhancing Ramseur s sentence under § 2D1.1(d) on this basis. III. For the foregoing reasons, we affirm Ramseur s conviction and sentence. AFFIRMED 17

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