US v. Michael Cornwell, No. 10-4365 (4th Cir. 2011)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4365 UNITED STATES OF AMERICA, Plaintiff Appellee, v. MICHAEL ANTHONY CORNWELL, Defendant Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Robert J. Conrad, Jr., Chief District Judge. (3:06-cr-00216-RJC-3) Submitted: March 8, 2011 Decided: March 21, 2011 Before NIEMEYER, KING, and GREGORY, Circuit Judges. Affirmed by unpublished per curiam opinion. Aaron E. Michel, Charlotte, North Carolina, for Appellant. Anne M. Tompkins, United States Attorney, Richard Lee Edwards, Assistant United States Attorney, Asheville, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Michael Anthony Cornwell appeals his conviction and 180-month sentence for two counts of conspiracy to distribute cocaine, in violation of 21 U.S.C. § 846 (2006) ( Counts One and Four ), and distribute, two in counts violation of of possession 21 with U.S.C. (b)(1)(B) ( Counts Two and Five ). the intent § 841(a)(1) to (2006), On appeal, he argues that (1) there was insufficient evidence to sustain his convictions; (2) his Sixth Amendment rights were violated when he was sentenced based on a higher drug quantity than found by the jury; and (3) his Fifth Amendment rights were violated when the district court allowed the prosecutor to show video footage of his arrest and comment on his demeanor. Finding no reversible error, we affirm. Cornwell first contends that there was insufficient evidence to support his convictions and that the district court should have granted his motion for acquittal. We review a district court s denial of a Fed. R. Crim. P. 29 motion for acquittal de novo. (4th Cir. 2008). United States v. Reid, 523 F.3d 310, 317 A defendant challenging the sufficiency of the evidence to support his conviction bears a heavy burden. United States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997) (internal quotation marks omitted). We will uphold a jury s verdict if, viewing the evidence in the light most favorable to 2 the government, it is supported by substantial evidence. 523 F.3d at reasonable 317. Substantial finder of fact evidence could is accept evidence as Reid, that adequate a and sufficient to support a conclusion of a defendant s guilt beyond a reasonable doubt. (4th Cir. 2005) United States v. Alerre, 430 F.3d 681, 693 (internal quotation marks omitted). In resolving issues of substantial evidence, we do not reweigh the evidence or reassess the factfinder s determination of witness credibility, see United States v. Brooks, 524 F.3d 549, 563 (4th Cir. 2008), and can reverse a conviction on insufficiency grounds only when the prosecution s failure is clear. United States v. Moye, 454 F.3d 390, 394 (4th Cir. 2006) (en banc) (internal quotation marks omitted). To Four, the agreement prove the Government to possess conspiracy was with charged required intent to to in Counts establish: distribute One and (1) an cocaine base existed between two or more persons; (2) [Cornwell] knew of the conspiracy; and (3) [Cornwell] knowingly and voluntarily became part of the conspiracy. Reid, 523 F.3d at 317. Evidence of a buy-sell transaction involving a substantial quantity of drugs, repeated transactions, and continuing relationships can support a finding of a conspiracy. Id. (citing United States v. Burgos, 94 F.3d 849, 857 (4th Cir. 1996); United States v. Mills, 995 F.2d 480, 485 n.1 (4th Cir. 1993)). 3 [T]he testimony of a defendant s accomplices, standing alone and uncorroborated, can provide an adequate basis for conviction. Burns, 990 F.2d 1426, 1439 (4th Cir. 1993). United States v. To prove possession with the intent to distribute, the Government was required to prove (1) possession of the controlled substance; (2) knowledge See United of the possession; and (3) intent to distribute. States v. Hall, 551 F.3d 257, 267 n.10 (4th Cir. 2009). Cornwell was arrested while participating in a cocaine transaction with a confidential informant to whom he had sold cocaine several times. Cornwell s The jury heard testimony from several of accomplices that he engaged in repeated cocaine transactions, was owed large sums of money, and patterned his sales similarly Additionally, to the evidence incident of Cornwell s personal business. cocaine leading residue to his was arrest. found in We hold that this evidence was sufficient to support the jury s verdict. Cornwell next argues that the district court violated his Sixth Amendment rights when it sentenced him based on a higher drug quantity than found by the jury. We review legal questions that arise from the imposition of a sentence de novo. United States v. Caplinger, 339 F.3d 226, 235 (4th Cir. 2003). A judge does not violate the Sixth Amendment by finding facts during sentencing. (4th Cir. 2008). United States v. Benkahla, 530 F.3d 300, 312 Sentencing judges may find facts relevant to 4 determining evidence, a so Guidelines long as the range by a Guidelines preponderance sentence is of the treated as advisory and falls within the statutory maximum authorized by the jury s verdict. Here, Cornwell the responsible Id. district for a court did larger preponderance of the evidence. not volume err finding cocaine of in by a Moreover, Cornwell s 180-month sentence for his drug offenses was within the statutory maximum, see 21 U.S.C. § 841(b)(1)(B), and there is no indication in the record that the district court considered the Guidelines to be mandatory. Accordingly, we hold that Cornwell s Sixth Amendment rights were not violated. Lastly, violated his Cornwell Fifth argues Amendment that rights the when it district court admitted video footage of his silence when he was arrested and allowed counsel for the Government to comment on it during closing argument. Because Cornwell did not object to the videotape or comments at trial, his claim is reviewed for plain States v. Olano, 507 U.S. 725, 731 (1993). the district court s judgment unless error. 5 United Thus, we will affirm there is plain and affects Cornwell s substantial rights. P. 52(b). See error that is Fed. R. Crim. Evidence that a defendant remained silent at the time of arrest but before receiving Miranda * warnings is admissible at trial. United States v. Love, 767 F.2d 1052, 1063 (4th Cir. 1985). Because Cornwell had not received Miranda warnings at the time the video was recorded, we hold that the district court did not violate Cornwell s Fifth Amendment rights by allowing the prosecution to show the video and comment on it. Accordingly, we affirm the district court s judgment. Consequently, we deny Cornwell s motions to file a pro se supplemental brief and to hold the case in abeyance to allow him to file a pro se reply brief. 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 * Miranda v. Arizona, 384 U.S. 436 (1966). 6