US v. Aaron Coppedge, No. 10-4596 (4th Cir. 2011)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4596 UNITED STATES OF AMERICA, Plaintiff Appellee, v. AARON COPPEDGE, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. James C. Fox, Senior District Judge. (4:09-cr-00064-F-1) Submitted: October 26, 2011 Decided: November 18, 2011 Before MOTZ, KING, and DAVIS, Circuit Judges. Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion. M. Gordon Widenhouse, Jr., RUDOLF, WIDENHOUSE & FIALKO, Chapel Hill, North Carolina; Keith A. Williams, LAW OFFICES OF KEITH A. WILLIAMS, P.A., Greenville, North Carolina, for Appellant. George E. B. Holding, United States Attorney, Jennifer P. May-Parker, Kristine L. Fritz, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: A federal jury convicted Aaron Coppedge of conspiracy to distribute and possess with intent to distribute cocaine base ( crack ), in violation of 21 U.S.C. § 846 (2006); four counts of distribution of crack, in violation of 21 U.S.C. § 841(a) (2006); and possession with intent violation of 21 U.S.C. § 841(a). to distribute crack, in The district court sentenced Coppedge to life imprisonment for the conspiracy and possession with intent minimum to term, distribute and 360 counts, months the of statutory imprisonment distribution counts, to be served concurrently. appeals. For convictions, the reasons vacate but that the mandatory follow, we for Coppedge now affirm sentence the and Coppedge s remand for resentencing. Coppedge first argues on appeal that the district court erred in limiting his cross-examination of two prosecution witnesses, in violation of his Sixth Amendment right to confront his accusers. cooperating guaranteed United [A] witnesses by States the v. defendant s about sources Confrontation Cropp, 127 right of Clause F.3d cross-examine potential of 354, to the 358 bias is Constitution. (4th Cir. 1997) (citation omitted). We review for abuse of discretion a trial court s on limitations prosecution witness. a defendant s cross-examination of a United States v. Smith, 451 F.3d 209, 220 2 (4th Cir. 2006) (citation omitted). possesses wide latitude cross-examination, premised to Moreover, a district court impose on such confusion, repetition, and relevance. reasonable concerns limits as on prejudice, Id. (citations omitted). We have thoroughly reviewed the record and conclude that the district court did not err in imposing reasonable limitations on Coppedge s cross-examination of these witnesses. Coppedge next argues that the district court plainly erred in admitting testimony of a witness not proffered as an expert regarding a drug-related code word. As Coppedge failed to object to this testimony before the district court, we review this issue for plain error. See Fed. R. Crim. P. 52(b); United States v. Olano, 507 U.S. 725, 731-32 (1993). To meet this standard, Coppedge must demonstrate that there was error, that was plain, and that affected his substantial rights. U.S. at 731-32. Olano, 507 Moreover, even if Coppedge demonstrates plain error occurred, we will not exercise discretion to correct the error unless the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings. (internal quotation marks and citation omitted). Id. We conclude, based on our review of the record, that Coppedge has failed to meet these standards and therefore failed to demonstrate that the district courtly plainly erred. 3 Coppedge also argues that the district court abused its discretion in admitting testimony regarding drug transactions in which Coppedge was involved that occurred prior to the substantive counts of conviction. court s determination of the We review a district admissibility of Fed. R. Evid. 404(b) for abuse of discretion. Queen, 132 F.3d 991, 995 (4th Cir. evidence under United States v. 1997). An abuse of discretion occurs only when the trial court acted arbitrarily or irrationally in admitting evidence. United States v. Williams, 445 F.3d 724, 732 (4th Cir. 2006) (internal quotation marks and citation omitted). Rule 404(b) prohibits the admission of [e]vidence of other crimes, wrongs, or acts . . . to prove the character of a person in order to show action in conformity therewith. R. Evid. purposes, 404(b). Such such proof as evidence of is motive, admissible for opportunity, Fed. other intent, preparation, plan, knowledge, identity, or absence of mistake. Id. It is an inclusionary rule, allowing evidence of other crimes or acts to be admitted, except that which tends to prove only criminal disposition. See Queen, 132 F.3d at 994-95. For such evidence to be admissible, it must be (1) relevant to an issue other than the general character of the defendant; (2) necessary to prove an element of the charged offense; and (3) reliable. United States v. Hodge, 354 F.3d 305, 312 (4th 4 Cir. 2004) (citing Queen, 132 F.3d at 997). Additionally, the probative be value of the evidence must outweighed by its prejudicial effect. not substantially Id. (citing Fed. R. Evid. 403). Rule 404(b) does not, however, apply to evidence of United States v. Chin, 83 acts intrinsic to the crime charged. F.3d 83, 87 (4th Cir. 1996). Other criminal acts are intrinsic when they are inextricably intertwined or both acts are part of a single criminal preliminaries to quotation marks testimony of testimony was episode the and or crime other charged. citation Coppedge s the intrinsic Id. omitted). codefendant, to the acts at With we charged were necessary 88 (internal respect conclude to that offenses, as the this the transactions testified to were part of the charged conspiracy. We also conclude that the district court properly admitted the other witness challenged testimony pursuant to Rule 404(b), and that this evidence was not unduly prejudicial. See Queen, 132 F.3d at 994 ( Prejudice, as used in Rule 403, refers to evidence that has an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one. ) (citations omitted). Coppedge failed to prove next beyond argues a on appeal reasonable that doubt the that Government the prior convictions listed in its 21 U.S.C. § 851 (2006) notice were 5 sustained by Coppedge. If a defendant sustains a conviction under § 841(a) or § 846 after sustaining a prior conviction for a felony drug offense, the defendant is subject to a statutory mandatory U.S.C. minimum term § 841(b)(1)(A) § 841(b)(1)(A) (West of twenty (2006), Supp. years current 2011). of imprisonment. version The at 21 statutory 21 U.S.C.A. mandatory minimum is raised to life imprisonment if the defendant sustains the conviction after two convictions for felony drug offenses have become final. Id. In order to enhance the defendant s sentence based on his prior convictions, however, the Government must file an information pursuant to 21 U.S.C. § 851 stating in writing the previous convictions to be relied upon. If the defendant contests the 21 U.S.C. § 851(a)(1). information in the notice, or claims that any conviction is invalid, he must file a written response and the district court must hold a hearing to determine any issues raised by the response which would except the person from increased punishment. In reviewing a district court s 21 U.S.C. § 851(c)(1). imposition of an enhanced sentence based on §§ 841, 851, we review the court s findings of fact for clear error and its legal conclusions de novo. United States v. Kellam, 568 F.3d 125, 143 (4th Cir.), cert. denied, 130 S. Ct. 657 (2009). that the district We have reviewed the record and conclude court did not 6 err in finding that the Government proved that Coppedge sustained the prior convictions listed in the § 851 information. Coppedge next argues that the district court plainly erred in instructing the jury regarding its finding amount of drugs for which Coppedge was responsible. of the As Coppedge did not challenge the jury instructions in the district court, we review this argument for plain error. 731-32. See Olano, 507 U.S. at Moreover, [w]e review a jury instruction to determine whether, taken as a whole, the instruction fairly states the controlling law. United States v. Hurwitz, 459 F.3d 463, 474 (4th Cir. 2006) (quoting United States v. Moye, 454 F.3d 390, 398 (4th Cir. 2006) (en banc)). We conclude that the district court s instruction to the jury, that it must find the amount of drugs reasonably foreseeable to Coppedge during the course of See United the conspiracy, fairly stated the controlling law. States v. Collins, 415 F.3d 304, 311-14 (4th Cir. 2005). Therefore, the court did not plainly err in instructing the jury on the drug weight finding. Coppedge also argues that one of the convictions listed in the § 851 notice, and used to enhance the mandatory minimum for imprisonment, the was conspiracy not a and felony 7 distribution punishable counts to by term a life of imprisonment exceeding reasonableness, year. 1 one applying an We abuse review of a sentence discretion for standard. Gall v. United States, 552 U.S. 38, 51 (2007); see also United States v. Layton, 564 F.3d 330, 335 (4th Cir.), cert. denied, 130 S. Ct. 290 (2009). In so doing, we first examine the sentence for significant procedural error, including failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) [(2006)] factors, selecting a sentence based on clearly erroneous facts, explain the chosen sentence. As discussed or failing to adequately Gall, 552 U.S. at 51. above, under 21 U.S.C. § 841(b)(1)(A) (2006), a defendant is subject to a statutory mandatory minimum term of imprisonment of ten years unless he has sustained a prior conviction for a felony drug offense, in which case the statutory mandatory imprisonment, and is minimum raised becomes to life sustained two such prior convictions. twenty imprisonment years if he of has A felony drug offense is defined in part as an offense punishable by imprisonment for more than one year under any law . . . of a State. 21 U.S.C. § 802(44) (2006). 1 Coppedge has not challenged on appeal whether the other conviction listed in the § 851 notice, for trafficking cocaine, qualified as a felony drug offense. 8 We conclude that Coppedge s challenge to his enhanced sentence must be sustained. Here, one of Coppedge s prior convictions was for possession of controlled substances, a Class I felony under conviction, North Coppedge s Carolina prior law. At record the level time was III, of his and the sentencing court found that he should be sentenced within the presumptive range of the applicable sentencing table under N.C. Gen. Stat. § 15A-1340.17(c) (2007). Under North Carolina law, Coppedge faced a maximum term of imprisonment of eight months. See N.C. Gen. Coppedge Stat. could not § 15A-1340.17(d) have received a (2007). term Therefore, of imprisonment exceeding twelve months for this prior conviction. In United States v. Simmons, 648 F.3d 237 (4th Cir. 2011) (en banc), we determined that an offense is not punishable by a term exceeding one year of imprisonment if the defendant could not have imprisonment actually for that offense, history and other factors. a term exceeding one received more based than on his one prior year of criminal As Coppedge could not have received year of imprisonment for this prior offense, he did not have two qualifying predicate offenses to increase the statutory penalties under § 841(b)(1)(A). the advisory distribution Guidelines counts was range determined for the based Because conspiracy on the and statutory mandatory minimum of life imprisonment rather than twenty years 9 of imprisonment, see U.S. Sentencing Guidelines Manual § 5G1.1 (2010), Coppedge was sentenced based on an incorrect Guidelines calculation and an inapplicable statutory mandatory minimum. Thus the sentences for the conspiracy and distribution counts are procedurally unreasonable. 2 Coppedge also argues that the district court erred in rejecting his claim that the disparity between punishments for crack and cocaine offenses is unconstitutional. In his reply brief, Coppedge also asserts that the Fair Sentencing Act should apply retroactively to defendants such as Coppedge sentenced before the effective date of the act. that the district court did not err in rejecting who were We conclude Coppedge s argument. This court has repeatedly rejected arguments that the crack cocaine and punishments in § 841 are unconstitutional. See, e.g., United States v. Burgos, 94 F.3d 849, 876 (4th Cir. 1996) (collecting cases). determined that the Fair Moreover, a panel of this court has Sentencing Act does not apply retroactively to defendants sentenced before the effective date of the act. See United States v. Bullard, 645 F.3d 237, 248-49 (4th Cir.), cert. denied, 2011 WL 4536465 (2011) (No. 11-5912). 2 This conclusion implies no criticism of the district court or the Government, both of which dutifully applied authoritative Circuit precedent at the time of Coppedge s prosecution and sentencing. 10 As one panel of this court may not overrule another panel, see United States v. Rivers, 595 F.3d 558, 564 (4th Cir. 2010), this argument fails. Coppedge next argues that the district court erred in finding that he was a career offender under the advisory Guidelines, and erred in applying an enhancement for his role as a manager in the conspiracy. calculations under the In reviewing the district court s Guidelines, we review the district court s legal conclusions de novo and its factual findings for clear error. United States v. Manigan, 592 F.3d 621, 626 (4th Cir. 2010) (internal quotation marks and citation omitted). We will find clear error only if, on the entire evidence, we are left with the definite and firm conviction that a mistake has been committed. Id. at 631 (internal quotation marks and citation omitted). Under the Guidelines, a defendant is considered a career offender if (1) he was eighteen years old at the time of the offense either a offense, felony of conviction, felony and (3) crimes of crime he has of (2) the violence sustained violence offense or or two of conviction controlled prior controlled substance convictions substance is for offenses. U.S. Sentencing Guidelines Manual ( USSG ) § 4B1.1(a) (2010). A crime of violence is defined in part as any offense punishable by a term of imprisonment exceeding 11 one year that involves conduct injury that to substance presents a another. offense serious USSG is an potential risk § 4B1.2(a)(1)-(2). offense punishable of A by physical controlled a term of imprisonment exceeding one year that prohibits the manufacture, distribution, or dispensing of a controlled substance, or the possession with intent to manufacture, distribute, or dispense a controlled substance. Although USSG § 4B1.2(b). Coppedge initially objected to the career offender finding under the Guidelines, at the sentencing hearing he explicitly withdrew that objection. waived review of this issue. See Therefore, Coppedge has Olano, 507 U.S. at 733 ( [W]aiver is the intentional relinquishment or abandonment of a known right. ) (citations omitted). However, even in the absence of a waiver, we would conclude that the district court did not err in finding that Coppedge was a career offender. As discussed above, Coppedge s prior conviction for possession of controlled substances is not a felony controlled substance offense as Coppedge could not have received more than one year of imprisonment and the offense did not involve the intent to distribute the controlled substances. However, even discounting this conviction, Coppedge had sustained a sufficient number of convictions for felony controlled substance offenses and crimes of violence to qualify as a career offender. As we find that the district court did not err in finding that Coppedge was a 12 career offender, it is unnecessary to review his argument that the court erred in applying an enhancement for his role as a manager under the Guidelines, as his career offender status rendered that calculation moot. Coppedge also argues that the statutory mandatory minimum term of life imprisonment for a drug conspiracy offense violates the Fifth Amendment s Due Process Clause and the Eighth Amendment s prohibition on cruel and unusual punishment. As we have determined that the statutory mandatory minimum term of life imprisonment is not applicable to Coppedge, however, we decline to reach this issue at this time. Finally, Coppedge argues that the district court erred in enhancing his sentence based on prior convictions that were neither admitted reasonable by doubt. him This nor proved argument is to the jury foreclosed beyond by a binding precedent, see, e.g., Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) ( Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. ), and therefore must fail. Accordingly, we affirm Coppedge s convictions, but vacate the sentence for the conspiracy and distribution counts, and remand for resentencing in light of Simmons. We dispense with oral argument because the facts and legal contentions are 13 adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED IN PART, VACATED IN PART, AND REMANDED 14

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