US v. Walter Brooks, No. 12-4740 (4th Cir. 2013)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4740 UNITED STATES OF AMERICA, Plaintiff Appellee, v. WALTER BROOKS, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. John A. Gibney, Jr., District Judge. (3:11-cr-00310-JAG-1) Submitted: April 26, 2013 Decided: May 2, 2013 Before WILKINSON, KING, and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. Matthew W. Greene, GREENE LAW GROUP, PLLC, Fairfax, Virginia, for Appellant. Neil H. MacBride, United States Attorney, Roderick C. Young, Assistant United States Attorney, Richmond, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Walter conspiracy to Brooks provide was found inmates guilty prohibited of one count objects, to of use a communication facility in the commission of a felony, and to bribe a public official, in violation of 18 U.S.C. § 371 (2006); one count of conspiracy to possess with intent to distribute and to distribute heroin, in violation of 21 U.S.C. §§ 841(a)(1), 846 (2006); five counts of providing contraband in prison and aiding §§ 1791(a)(1), 2 and abetting, (2006); and in three violation counts of of 18 use U.S.C. of a communication facility to commit a felony, in violation of 21 U.S.C. § 843(b) (2006). Brooks received sentence of 240 months imprisonment. an upward variance On appeal, he argues: (1) that he was subjected to double jeopardy; (2) that his § 371 conviction was not supported by sufficient evidence; and (3) that his sentence was both procedurally and substantively unreasonable. We affirm. Brooks double jeopardy claim is patently meritless. 1 It appears to be based on his erroneous belief that Count One of the indictment required proof that Brooks had been convicted of bribery. First, the language of the indictment itself charges 1 This claim, raised for the first time on appeal, is reviewed for plain error. United States v. Olano, 507 U.S. 725, 732 (1993). 2 only an agreement to commit bribery, and makes no reference to a conviction for bribery. This language is sufficient to charge a violation of 18 U.S.C. § 371. To establish a conspiracy under 18 U.S.C. § 371, the Government must prove only an agreement between two or more people to commit a crime against the federal government, and an overt act in furtherance of the conspiracy. United States v. Kingrea, 573 F.3d 186, 195 (4th Cir. 2009) (citing United States v. Ellis, 121 F.3d 908, 922 (4th Cir. 1997)). Therefore, the Government need not prove a conviction for underlying the crime. Even where both the conspiracy offense and the underlying offense are charged and convictions result, however, no double jeopardy violation occurs, as [a] substantive crime and conspiracy to commit that crime are separate offenses for purposes of the Double Jeopardy Clause, even if they are based on the same underlying incidents. United States v. Yearwood, 518 F.3d 220, 227 (4th Cir. 2008). Thus, Brooks has failed to assert a viable double jeopardy claim. Brooks challenge to the sufficiency of the evidence sustaining his § 371 conspiracy conviction also lacks merit. 2 2 We Because Brooks contested the sufficiency of the evidence below, our review is de novo. United States v. Penniegraft, 641 F.3d 566, 571 (4th Cir.), cert. denied, 132 S. Ct. 564 (2011). 3 will uphold a guilty verdict that, viewing the evidence in the light most favorable to substantial evidence. 385 (4th Cir. the prosecution, is supported by United States v. Osborne, 514 F.3d 377, 2008) (internal quotation marks omitted). Further, we do not review the credibility of the witnesses and assume that the jury resolved all contradictions in the testimony in favor of the government ; a defendant challenging the sufficiency reversal of a of the evidence conviction is bears limited prosecution s failure is clear. a to heavy cases burden, as where the United States v. Foster, 507 F.3d 233, 244-45 (4th Cir. 2007). As stated above, in order to establish a violation of 18 U.S.C. § 371, the Government must prove the existence of an agreement between two or more people to commit a crime against the government conspiracy. and an overt act in furtherance Ellis, 121 F.3d 908 at 922. of the The evidence of a conspiratorial agreement need not be direct, but may be inferred from circumstantial evidence. Id. Proof of a tacit or mutual understanding between the conspirators is sufficient to uphold a conspiracy conviction. Id. (internal quotation marks omitted). We find the Brooks § 371 conviction. evidence here sufficient to support During trial, the government elicited testimony from Brooks coconspirators that they worked together 4 to smuggle contraband, namely heroin, into federal prison. Further, the Government demonstrated, through witness testimony, that the coconspirators used telephones in order to facilitate the heroin established heroin smuggling that into Brooks prison unreasonable. deferential States, Finally, convinced under exchange for payment. Brooks scheme. color a prison of his the Government guard to official title, next urges that the sentence imposed was We review a sentence for reasonableness under a abuse of U.S. 38, 552 is in Therefore, this claim must fail. discretion 51 standard. (2007). A Gall v. United reasonableness review includes both procedural and substantive components. sentence smuggle procedurally reasonable where the Id. district A court committed no significant procedural errors, such as improperly calculating the Guidelines range, failing to consider the 18 U.S.C. § 3553(a) (2006) factors, or insufficiently explaining the selected sentence. United States v. Boulware, 604 F.3d 832, 837-38 (4th Cir. 2010). sentence is circumstances. assessed The substantive reasonableness of a in light of the totality of the Gall, 552 U.S. at 51. At sentencing, the district court considered evidence, in the form of testimony and a video, of a fight between Brooks and other inmates that occurred while Brooks was being held at a regional jail pending sentencing. 5 Three inmates were sent to the hospital as a result of this encounter with Brooks. court referred to this conduct more Brooks upwardly variant sentence. than once in The explaining Brooks asserts that: (1) the district court erred in relying on uncharged conduct to enhance his sentence; (2) his due process rights were violated because he was unable to confront and cross-examine witnesses against him at sentencing; and (3) his Fifth Amendment right against self incrimination was violated because he was constrained from testifying in his own defense at sentencing for fear of possible state charges. There are no limits on the information concerning the background, that the character, district and court appropriate sentence. district court conduct may of a consider convicted in determining 18 U.S.C. § 3661 (2006). sentences a defendant defendant an So long as the within the statutory maximum authorized by the jury s findings, a district court can consider facts that it finds by a preponderance of the evidence. See United States v. Grubbs, 585 F.3d 793, 798-99 (4th Cir. 2009). Based on the testimony and other evidence presented at sentencing, the district court concluded that Brooks assaulted three fellow inmates at the regional jail. assault, the district § 3553(a) factors in court turn also and In addition to this considered discussed how each each of applied the to Brooks, particularly emphasizing the seriousness of the offense 6 of bringing heroin into a prison. Accordingly, the district court did not err in considering uncharged conduct. Brooks next argues that his due process rights and Fifth Amendment violated privilege because he was against unable to self incrimination either confront were and cross examine witnesses or testify himself regarding the jail assault. As the Government correctly noted, Brooks could have called or cross examined Confrontation any witness Clause does he not wanted. apply at Furthermore, sentencing. the United States v. Powell, 650 F.3d 388, 393 (4th Cir.), cert. denied, 132 S. Ct. 350 self-incrimination, (2011). this As privilege to Brooks guarantees right only against that the witness not be compelled to give self-incriminating testimony. McKune v. Lile, 536 U.S. 24, 35-36 (2002). No such compulsion occurred not here. When a defendant chooses to testify at sentencing because of pending uncharged conduct, he takes a risk that the credible, government s but his uncontradicted Fifth Amendment evidence right is will not be deemed implicated. United States v. Marshall, 719 F.2d 887, 892 (7th Cir. 1983). Accordingly, we perceive no violation of Brooks constitutional rights at sentencing. Finally, Brooks argues that the district court erred in calculating the drug weight attributable to him. finding of drug quantity for clear error. 7 We review a United States v. Kellam, 568 F.3d 125, 147 (4th Cir. 2009). At sentencing, the government need establish the amount of drugs involved by only a preponderance of the evidence. F.3d 549, 561-62 (4th Cir. United States v. Brooks, 524 2008). Where there is no drug seizure or the amount seized does not reflect the scale of the offense, the controlled court shall substance. approximate U.S. the Sentencing quantity of Guidelines the Manual § 2D1.1, cmt. n.12 (2011). Brooks improper rote quantity by alleges that the multiplication multiplying district court it determined amount the when of drugs engaged his found in drug in his coconspirator s vehicle by the number of transactions testified to at trial. Courts have cautioned against rote multiplication in situations where an estimate of quantity is multiplied by an estimate of frequency, noting that quantities must find specific support in the record. drug United States v. Laboy, 351 F.3d 578, 583 (1st Cir. 2003); see also United States v. Hickman, 626 F.3d 756, 769 (4th Cir. 2010) (noting that where courts have evidence of a number of transactions, they have been permitted to multiply that number by an average weight-per-transaction to reach an estimate ). Here, while the district court did of necessity estimate the aggregate quantity of drugs, its methodology of multiplying the known number of transactions by the quantity involved in the 8 final transaction and discounting the outcome by a factor of 20%, was well within the wide latitude of discretion afforded sentencing courts. Therefore, we find that his district court did not err when calculating the drug weight attributable to Brooks. We thus find Brooks sentence both procedurally and substantively reasonable. Accordingly, we affirm the district court s judgment. We deny Brooks motion for reconsideration of the denial of his motion to appoint new counsel. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid in the decisional process. AFFIRMED 9
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