US v. Tamaurius Allen, No. 09-4369 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4369 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. TAMAURIUS LEE ALLEN, Defendant Appellant. No. 09-4773 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. THOMAS AVERY ALLEN, JR., Defendant Appellant. Appeals from the United States District Court for the Middle District of North Carolina, at Winston-Salem. N. Carlton Tilley, Jr., Senior District Judge. (1:07-cr-00409-NCT-1; 1:07cr-00409-NCT-2) Submitted: October 6, 2010 Decided: December 2, 2010 Before MOTZ, GREGORY, and KEENAN, Circuit Judges. Affirmed by unpublished per curiam opinion. J. Clark Fischer, RANDOLPH AND FISCHER, ATTORNEYS, WinstonSalem, North Carolina; Brian M. Aus, Durham, North Carolina, for Appellants. Anna Mills Wagoner, United States Attorney, Graham T. Green, Assistant United States Attorney, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: Tamaurius Lee Allen and Thomas Avery Allen, Jr. were convicted after a jury trial of various drug-related offenses and sentenced imprisonment, to 150 months respectively. imprisonment On appeal, and 360 Tamaurius months challenges only his convictions while Thomas challenges his convictions and sentence. We affirm. I. Tamaurius was convicted of distribution of 26.1 grams of cocaine cocaine base base distribute (Count (Count 40.1 grams One); Two); of distribution and of possession cocaine base 38.5 with (Count grams of intent to Four); violation of 21 U.S.C. § 841(a)(1), (b)(1)(B) (2006). was convicted of distribution of 63.4 grams of all in Thomas cocaine base (Count Five); and distribution of 61.0 grams of cocaine (Count Six); both (2006). in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B) Both brothers were convicted of distribution of 40.4 grams of cocaine base and aiding and abetting (Count Three), in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B), and 18 U.S.C. § 2 (2006). prior Prior to trial, the Government filed informations of felony drug convictions pursuant (2006), as to each defendant. 3 to 21 U.S.C. § 851 On appeal, Tamaurius contends that during the trial the district court incorrectly admitted evidence that, prior to the first drug transaction, a detective conducted surveillance of the area and observed drug activity. Tamaurius contends that this evidence was inadmissible under Federal Rules of Evidence 401 and 403. We review the district court s evidentiary rulings for abuse of discretion. United States v. Delfino, 510 F.3d 468, 470 (4th Cir. 2007), and we will not vacate a conviction unless we find that the district court judge acted arbitrarily or irrationally Benkahla, 530 in F.3d admitting 300, 309 evidence. (4th Cir. United 2008) States (quoting v. United States v. Ham, 998 F.2d 1247, 1252 (4th Cir. 1993)). Rule 401 provides for the admission of evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Evid. 401. Fed. R. [R]elevance typically presents a low barrier to admissibility. (4th Cir. 2003). United States v. Leftenant, 341 F.3d 338, 346 Thus, evidence is relevant if it is worth consideration by the jury or has a plus value. United States v. Queen, 132 F.3d 991, 998 (4th Cir. 1997) (internal quotation marks omitted). Rule 403 provides a more limited bar to otherwise admissible evidence. United States v. Basham, 561 F.3d 302, 4 326 (4th Cir. 2009), cert. denied, 130 S. Ct. 3353 (2010). rule only unfair requires prejudice suppression prejudice of that evidence that damages an The results in opponent for reasons other than its probative value, for instance, an appeal to emotion, and only when that unfair prejudice substantially outweighs the probative value of the evidence. v. Mohr, 318 F.3d 613, 619-20 (4th Cir. United States 2003) (internal quotation marks omitted). The district court did not abuse its discretion in admitting the challenged evidence. First, the evidence, which was essentially background in nature and served to explain the detective s further surveillance and undercover operation, was clearly relevant. See Fed. R. Evid. 401 advisory committee s note ( Evidence which is essentially background in nature can scarcely be said to involve the disputed matter, yet it is universally offered and admitted as an aid to understanding ). Moreover, discretion in the admitting district the court evidence did under not Rule abuse its 403. The testimony did not contain any allegations that the detective saw Tamaurius or Thomas selling drugs prior to the beginning of the undercover operation. risk of unfair Accordingly, it cannot be said that any prejudice substantially testimony s probative value. 5 outweighed the Thomas first challenges the evidence on Counts Five and Six. sufficiency of the We will sustain a guilty verdict if, viewing the evidence in the light most favorable to the Government, evidence. the verdict is supported by substantial United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc). reasonable [S]ubstantial evidence is evidence that a finder of fact could accept as adequate and sufficient to support a conclusion of a defendant s guilt beyond a reasonable doubt. circumstantial as Id. at 862. well as In our review, we consider direct evidence, and allow the government the benefit of all reasonable inferences from the facts proven to those sought to be established, United States v. Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982), and we assume that the fact finder resolved all testimony in favor of the Government. 524 F.3d 549, 563 (4th Cir. 2008). contradictions in the United States v. Brooks, [A]s a general proposition, circumstantial evidence may be sufficient to support a guilty verdict even hypothesis Osborne, though it consistent 514 F.3d does with 377, quotation marks omitted). 387 not exclude innocence. (4th Cir. every United 2008) reasonable States v. (alteration and Having reviewed the record in light of this standard, we conclude that the verdicts on Counts Five and Six were supported by adequate evidence. 6 Thomas next argues that the district court committed two reversible reviewing any errors during sentence, his sentencing whether inside, proceeding. just outside, In or significantly outside the Guidelines range, this court applies a deferential abuse-of-discretion standard. States, 552 U.S. 38, 41 (2007). that the error. district court Id. at 51. procedurally of This court first ensure[s] committed no significant procedural If, and only if, we find the sentence reasonable reasonableness Gall v. United the discretion standard. can we sentence consider imposed the under substantive an abuse-of- United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009) (quoting Gall, 552 U.S. at 51). Procedural errors may include failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence--including an explanation for any deviation from the Guidelines range. Gall, 552 U.S. at 51. Thomas argues that the district court committed procedural error by failing to recognize its ability to vary his sentence downward based on his diminished crack-to-powder cocaine sentencing disparity. capacity and the We conclude that the district court did not commit reversible procedural error in 7 either respect. First, the district court engaged Thomas s counsel at length before ultimately concluding no variance was warranted based on Thomas s alleged diminished capacity. The district court began its statement of reasons by noting that it had the freedom to vary from the Guidelines recognized that it must have a reason to vary. range, but The district court noted that mental capacity was a factor under § 3553(a) but that, in this case, it was not in a position to grant a downward variance because, although Thomas had a low IQ score from his youth, he also admitted to extensive drug use during his formative years. The district court further noted that Thomas, when he was in prison and not using drugs, was able to get his GED, which suggested that when you are not using drugs, you can do pretty good stuff. exactly what procedural Gall error requires, in denying This thoughtful discussion is and a the court downward did not variance commit based on Thomas s diminished capacity. Likewise, the district court did not commit procedural error in refusing to vary from the crack/powder ratio applicable to Thomas. In this case, the district court specifically recognized its authority to vary from the 20:1 ratio in Thomas s case but simply declined to exercise that authority. Accordingly, the district court did not commit procedural error. See United States v. Caldwell, 585 F.3d 1347, 1355 (10th Cir. 8 2009) (upholding district court s decision not to vary from crack/powder ratio because [n]othing in Kimbrough [v. United States, 552 reduce a U.S. 85 defendant s (2007)] mandates sentence in that order a to district eliminate court the crack/powder sentencing disparities ). For the foregoing reasons, we affirm the convictions and sentences of Tamaurius Lee Allen and Thomas Avery Allen, Jr. We grant Thomas s motion to file a pro se supplemental brief. We have considered the arguments asserted in the pro se brief and conclude that they are without merit. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court, and argument would not aid the decisional process. AFFIRMED 9
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