US v. Cheryl Goff, No. 09-4876 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4876 UNITED STATES OF AMERICA, Plaintiff Appellee, v. CHERYL L. GOFF, Defendant Appellant. No. 09-4883 UNITED STATES OF AMERICA, Plaintiff Appellee, v. STEVEN C. GREEN, Defendant Appellant. Appeals from the United States District Court for the Northern District of West Virginia, at Clarksburg. Irene M. Keeley, District Judge. (1:09-cr-00021-IMK-2; 1:09-cr-00021-IMK-1) Submitted: November 3, 2010 Decided: Before SHEDD, KEENAN, and WYNN, Circuit Judges. December 10, 2010 Affirmed by unpublished per curiam opinion. William L. Pennington, Morgantown, West Virginia; Jacob A. Manning, DINSMORE & SHOHL, LLP, Wheeling, West Virginia, for Appellants. Betsy C. Jividen, Acting United States Attorney, Andrew R. Cogar, Assistant United States Attorney, Clarksburg, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: A jury convicted Cheryl L. Goff and Steven C. Green of one count each of conspiracy to possess with the intent to distribute more than five grams of cocaine base, in violation of 21 U.S.C. § 846 (2006), and Goff of one count of maintaining a drug-involved premises, in violation of 21 U.S.C. § 856(a)(1) (2006). The imprisonment district court sentenced Goff to 262 count conspiracy and and a concurrent imprisonment maintains on that the the months maintaining evidence Green is to 97 imprisonment term of count. 240 On insufficient months on the months appeal, to Goff support her convictions and that the district court abused its discretion in imposing sentence. Green maintains that the district court abused its discretion in denying his motions for a mistrial and for a new trial and in admitting Goff s statements against him. We affirm. A defendant challenging the sufficiency of the evidence to support [her] conviction[s] bears a heavy burden. United States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997) (internal quotation marks omitted). We will uphold the jury s verdict if, viewing the evidence in the light most favorable to the [G]overnment, United States v. it is Reid, supported 523 F.3d by 310, substantial 317 (4th evidence. Cir. 2008). Substantial evidence is evidence that a reasonable finder of 3 fact could accept as adequate and sufficient to support a conclusion of a defendant's guilt beyond a reasonable doubt. Id. (internal quotation marks omitted). In reviewing for substantial evidence, we consider both circumstantial and direct evidence and allow the Government all reasonable inferences from the facts shown to those sought to be established. States v. Harvey, 532 F.3d 326, 333 (4th Cir. 2008). weigh evidence or review witness credibility. Wilson, 118 F.3d 228, 234 (4th Cir. 1997). United We do not United States v. Rather, it is the role of the jury to judge the credibility of witnesses, resolve conflicts in testimony, and weigh the evidence. United States v. Manbeck, 744 F.2d 360, 392 (4th Cir. 1984). The under 21 offense U.S.C. (1) knowingly of maintaining § 856(a) (2) opened, a drug-involved requires proof that leased, rented, or the premises defendant maintained any place (3) for the purpose of manufacturing, distributing, or using any controlled substance. See 21 U.S.C. § 856(a)(1); United States v. Russell, 595 F.3d 633, 642 (6th Cir.), cert. denied, ___ S. Ct. (Oct. 4, 2010); ___, United No. States v. 09-11002, Verners, 2010 53 WL F.3d 2102243 291, 295 (10th Cir. 1995); United States v. Onick, 889 F.2d 1425, 1431 (5th Cir. 1989). Goff contends that the evidence is insufficient to support her conviction for the maintaining count because the Government s key witness 4 was unbelievable. We reject this challenge because witness credibility is not subject to appellate review, Wilson, 118 F.3d at 234, and, as evidenced by its finding of guilt, the jury resolved any conflicts in testimony in favor of the Government and determined the Government s witnesses to be sufficiently credible, see Manbeck, 744 F.2d at 392. Additionally, after review of the record, we conclude there was sufficient evidence from which a jury could find beyond a reasonable doubt that Goff maintained a residence for the purpose of distributing cocaine base. Further, because the evidence is sufficient to support Goff s conviction on the maintaining count, we reject her challenge to the sufficiency of the evidence supporting the conspiracy count, a challenge premised on the argument that the evidence is insufficient to support her conviction on the maintaining count. Goff also challenges her sentence, asserting three grounds for vacatur: first, that the district court treated the Sentencing Guidelines as presumptively reasonable; second, that the court failed to adequately explain its rationale for imposing sentence; and third, that the sentence is substantively unreasonable. deferential We review the district court s sentence under a abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 41 (2007). This review entails appellate consideration procedural of both the reasonableness of the sentence. Id. at 51. 5 and substantive In assess determining whether the procedural district reasonableness, court defendant s Guidelines range. properly we first calculated Id. at 49, 51. the We must then consider whether the district court treated the Guidelines as mandatory, failed to consider the 18 U.S.C. § 3553(a) (2006) factors and any arguments presented by the parties, selected a sentence explain based on clearly sufficiently the erroneous selected facts, sentence. or failed Id. at to 50-51; United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). We also review whether the district court made an individualized assessment based on the facts presented. Gall, 552 U.S. at 50; see United States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009) (holding that, while the individualized assessment need not be elaborate or lengthy, . . . it must provide a rationale tailored to the particular meaningful case . . . and appellate review [be] adequate permit quotation (internal to marks omitted)). When reviewing for substantive reasonableness, we take into account 552 U.S. at calculated the 51. totality We accord Guidelines range reasonableness. (4th Cir. 2008). of a an the circumstances. sentence within appellate a Gall, properly- presumption of See United States v. Abu Ali, 528 F.3d 210, 261 Such a presumption is rebutted only by showing that the sentence is unreasonable when measured against the 6 [18 U.S.C.] § 3553(a) factors. 445 F.3d 375, 379 (4th Cir. United States v. Montes-Pineda, 2006) (internal quotation marks omitted). In this case, the district court properly calculated Goff s sentencing ranges under the U.S. Sentencing Guidelines Manual (2008), and no record evidence supports Goff s assertion that the court treated those ranges as mandatory. its decision to impose the concurrent, In explaining within-Guidelines sentences of 262 and 240 months imprisonment, the court stated that it had considered the 18 U.S.C. § 3553(a) sentencing factors and the arguments of Goff s counsel concerning Goff s resolve to spend time with her family and whether the imposition of a within-Guidelines sentence would be greater than necessary to achieve the purposes of sentencing. The court also addressed Goff s history and characteristics, the nature and circumstances of her offense, and the need for the sentence to provide just punishment for Goff, afford adequate deterrence, and protect the public. The respective sentences fall within the properly- calculated Guidelines ranges, and Goff fails to overcome the appellate presumption of reasonableness this court affords to these sentences. Accordingly, we conclude that the district court did not abuse its discretion in sentencing Goff. Turning to Green s challenges, he maintains that the district court erred by denying his motion for a mistrial based 7 on the untimely disclosure of the Government s analysis of a package of cocaine base. fingerprint According to Green, his theory of the defense was that the Government was not thorough in its investigation, and trial counsel highlighted this fact by eliciting from the Government s case agent that investigators had the ability to perform a fingerprint analysis and that, if such an analysis had showed that the fingerprints of a co-conspirator were present on the package, such analysis would negate the co-conspirator s testimony that Green was always in possession of the conspiracy s supply of cocaine base. Thus, Green asserts that counsel s credibility was damaged when the Government elicited from the case agent that a fingerprint analysis of the package had been performed. We review the denial of a motion for a mistrial for abuse of discretion. United States v. Dorlouis, 107 F.3d 248, 257 (stating (4th Cir. 1997) that denial of a defendant's motion for a mistrial is within the sound discretion of the district court extraordinary of and will be disturbed circumstances ). only In order under for the the most trial court s ruling to constitute such an abuse of discretion, the defendant must show prejudice. 45 F.3d 809, 817 (4th Cir. 1995). there is possibility a clear that the abuse of jury's United v. Dorsey, Reversal is required only if discretion verdict 8 States was and a reasonable influenced by the error. United States v. Seeright, 978 F.2d 842, 849 (4th Cir. 1992) (internal quotation marks omitted). Because our review of the record reveals that Green cannot show any prejudice from the untimely production of the fingerprint analysis, this claim fails. Next, Green challenges under Bruton v. United States, 391 U.S. 123 (1968), the admission of the statements of Goff who did not testify at their joint trial that she knew Green and other co-conspirators and before they were arrested. statements, standing smoked cocaine base the night Green contends that, although the alone, were not incriminating, they implicated him in the conspiracy when viewed in light of other evidence presented at trial. Because Green did not object in the district court to the admission of these statements, our review is for plain error, which exists when clear or obvious error affects the defendant s substantial rights. See United States v. Massenburg, 564 F.3d 337, 342-43 (4th Cir. 2009). In defendant s against him out-of-court Bruton, Sixth is the Amendment violated statement inculpate the defendant. a Bruton Supreme problem right when is Court a to held that cross-examine non-testifying admitted at a their only to the witnesses co-defendant s joint See Bruton, 391 U.S. at 126. exists criminal extent trial to However, that the codefendant s statement in question, on its face, implicates the 9 defendant. United (4th Cir. 1994). States v. Locklear, 24 F.3d 641, 646 Additionally, a statement that is not facially incriminating is admissible, even if it is incriminating when linked with other evidence introduced. 481 U.S. 200, 208-11 (1987). See Richardson v. Marsh, Because the challenged statements were not facially incriminating to Green, their admission did not violate Bruton. Green therefore fails to show plain error. Finally, Green contends that the district court erred in denying his Fed. R. Crim. P. 33 motion for a new trial. We review a district court s denial of a motion for a new trial under Rule 33 for abuse of discretion. United Fulcher, 250 F.3d 244, 249 (4th Cir. 2001). trial based on newly-discovered evidence, States v. To warrant a new a defendant must demonstrate that: (1) the evidence is newly-discovered; (2) he has been diligent in uncovering it; (3) the evidence is not merely cumulative or impeaching; (4) the evidence is material to the issues involved; and (5) the evidence would probably produce an acquittal. See id. Unless the defendant demonstrates all five of these factors, the motion should be denied. United States v. Chavis, 880 F.2d 788, 793 (4th Cir. 1989). Here, the evidence that formed the basis of Green s motion for a new trial the cellular telephone records of one of Green s co-conspirators was not newly-discovered, as it was available to Green prior to and during trial. 10 Moreover, because Green s conviction was supported by evidence other than the testimony of this co-conspirator, we conclude that this is not one of the warranted on exceptional the basis rare of case[s] impeachment where a new evidence. trial See is United States v. Custis, 988 F.2d 1355, 1359 (4th Cir. 1993) (internal quotation marks omitted). We We dispense therefore with oral affirm the argument district because court s the facts judgments. and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 11
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