US v. Stanley Partman, No. 13-4212 (4th Cir. 2014)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4212 UNITED STATES OF AMERICA, Plaintiff Appellee, v. STANLEY D. PARTMAN, a/k/a Goat, Defendant Appellant. Appeal from the United States District Court for the District of South Carolina, at Columbia. Joseph F. Anderson, Jr., District Judge. (3:11-cr-02063-JFA-10) Argued: March 19, 2014 Decided: April 23, 2014 Before DUNCAN, WYNN, and DIAZ, Circuit Judges. Affirmed by unpublished opinion. Judge Duncan opinion, in which Judge Wynn and Judge Diaz joined. wrote the ARGUED: Casper Fredric Marcinak, III, SMITH MOORE LEATHERWOOD, LLP, Greenville, South Carolina, for Appellant. Robert Frank Daley, Jr., OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee. ON BRIEF: William N. Nettles, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. DUNCAN, Circuit Judge: Appellant Stanley Partman appeals the district court s denial of his motion for judgment of acquittal, denial of his motion for a new trial, and application of obstruction of justice sentencing enhancement. a two-level For the reasons that follow, we affirm. I. From 1996 to 2011, Partman supplied and distributed cocaine and crack cocaine as a member of a drug trafficking conspiracy operating out conspiracy, of Columbia, Partman s South Carolina. coconspirators included, During among this others, Donnay Rickard, Rondeal Woods, and Anthony Thompson. In March of cellular 2011, the FBI obtained a wiretap for Rickard s telephone that produced recordings of numerous phone calls among Rickard, include Partman, Partman s and their statements coconspirators. to Rickard that The he recordings possessed firearm and intended to kill Woods for selling bad cocaine. a In August of 2011, Partman was indicted for several violations of the Controlled Substances Act, 21 U.S.C. §§ 801, et seq., 1 and possession of a firearm in furtherance of a drug trafficking 1 Partman challenges his convictions under 21 U.S.C. §§ 841, 843, and 846 and 18 U.S.C. § 2 only indirectly through his appeal of the denial of his motion for a new trial. 2 crime in violation of 18 U.S.C. § 924(c). proceeded to trial on five counts. Partman s case We recount the relevant portions of the trial below. A. At jury selection, Partman appeared before the potential jurors in a collared button-down shirt provided by his attorney and slippers Partman did and pants object not red to issued his by attire his or detention request civilian clothing be provided at that time. center. that other However, nearly a month later, just before trial, Partman sought to disqualify the jury, alleging that the jurors could not be impartial result of his appearance before them in prison attire. as a After interviewing the jury, the district court dismissed two jurors who recalled Partman s jury selection attire with specificity. Juror 129 J.A. 140, remembered and Partman s Juror 132 orange correctional issued pants, J.A. 147. 211, had no affirmative recollection reddish his remembered or court jumpsuit, issued A third juror, number and in response to court s question asked [w]as it something orange maybe? 142. Partman argued that the or third juror should the J.A. also be dismissed, and that because there were no remaining alternates, the jury should be disqualified. Partman s motion. 3 The district court denied To support its 18 U.S.C. § 924(c) charge at trial, the government sought to establish that Partman had attempted to shoot Woods for selling him bad cocaine in March of 2011. The government presented Partman s admission that he possessed two firearms during the relevant period, the testimony of multiple witnesses that Partman had threatened to kill Woods, a witness s testimony entered that someone Woods s matching barbershop Partman s looking for description Woods, and had wiretap recordings in which Partman stated that he was in possession of a firearm and was attempting to find and kill Woods. The government did not submit any evidence that a firearm belonging to Partman had been recovered or that any witness had actually seen Partman with a firearm during the relevant period. On the basis of this evidence, the jury found beyond a reasonable doubt that Partman possessed a firearm in furtherance of drug trafficking activities. During the course of the trial, Partman, who did not take the stand, spoke directly to the jury in open court. After the jurors were sworn, Partman interjected I do not want this guy to represent me because he said...it would not be in my best interest. because he s appointed Partman And he says he s not going to represent me fully not him. and getting J.A. explained paid 156. to him enough The district several 4 because times court that the [c]ourt reprimanded he was not permitted to address proceedings. the jury or otherwise interrupt the However, Partman subsequently spoke to the jury again, stating Jury they won t let me tell you what I want to - in this case--. district court J.A. 680. removed As a result of his outbursts, the Partman remainder of the trial. from J.A. 692. the courtroom for the The jury convicted Partman on all counts. B. After his conviction, a probation officer attempted interview Partman to prepare the pre-sentence report. to Partman was nonresponsive, and the parties requested that Dr. Thomas Martin, the forensic before trial, psychiatrist reassess his who had competency. cooperate with Dr. Martin s evaluation. examined Partman Partman refused to As a result, Dr. Martin testified at sentencing that he relied on an interview with one of Partman s correctional officers and recordings of Partman s prison telephone calls to assess his competency. concluded that Partman was competent. in-court disruptions conviction process, and the On the basis of Partman s noncompliance district Dr. Martin court during imposed the a post- two-level enhancement for obstruction of justice. Partman imprisonment. was sentenced to He timely appealed. 5 a total of 396 months II. We review the district court's denial of a motion for a new trial under an abuse of discretion standard. United States v. Wilson, 624 F.3d 640, 660 (4th Cir. 2010). The district court a should exercise its discretion to award new trial sparingly, and a jury verdict is not to be overturned except in the rare circumstance when the evidence weighs heavily against it. United States v. Smith, 451 F.3d 209, 217 (4th Cir. 2006) (internal quotation marks and citations omitted). We review challenges to the sufficiency of evidence de novo. United States v. Kelly, 510 F.3d 433, 440 (4th Cir. 2007). We must find that the evidence adequately supports a conviction if, viewing it in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. United States v. Abu Ali, 528 F.3d 210, 234 (4th Cir. 2008) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). We review criminal sentences for reasonableness using an abuse of discretion standard. 38, 51 (2007). for clear Gall v. United States, 552 U.S. We review the district court s factual findings error and its legal conclusions de novo. United States v. Strieper, 666 F.3d 288, 292 (4th Cir. 2012). A district court abuses its discretion when it acts arbitrarily or irrationally, fails to consider 6 judicially recognized factors constraining its exercise of discretion, relies on erroneous factual or legal premises, or commits an error of law. United States v. Delfino, 510 F.3d 468, 470 (4th Cir. 2007). III. On appeal, Partman contends that a new trial was required because his appearance in prison-issued clothing prejudiced the jury, acquittal was required because there was insufficient evidence to support his 18 U.S.C. § 924(c) conviction, and that the sentencing enhancement was unwarranted because his noncompliance and in-court disruptions did not rise to the level of obstruction of justice. We consider each issue in turn. A. We first address Partman s appeal of the district court s denial of his motion for a new trial. Partman argues that his Fourteenth Amendment right to a fair trial was violated because the jury was not disqualified after he appeared before it in detention center-issued clothing. Partman contends that one juror who remembered his attire was improperly allowed to remain after the district court questioned the jury members about their recollections contends that and excused Partman two other waived his jurors. right to The have government the jury disqualified because he waited for nearly a month after jury selection, until the eve of trial, to make his motion. 7 It argues in Partman the failed alternative to show that actual if the issue prejudice was preserved, resulting from his appearance in prison-issued clothing. The district court did not abuse its discretion by denying Partman s motion for a new trial because as a matter of law it did not err by impaneling the jury. went above Partman s and right In fact, the district court beyond what was to fair trial. a required The of it to secure particular evil proscribed by Estelle v. Williams, 425 U.S. 501 (1976), the controlling Supreme Court precedent, is compelling a defendant, against his will, to be tried in jail attire. Id. at 508. When a defendant is represented by counsel, the burden is on the defendant, not the defendant s attire. court, to raise an objection to the See id. at 511-12. Therefore, contrary to Partman s contention, the relevant inquiry is not whether the defendant was seen by potential jurors in prison clothing, but instead, whether he was required by the government to appear in prison clothing. In this case, it is clear on the face of the record that there was no such compulsion. Partman provided his by was attorney permitted to jury 8 to wear a selection. civilian There shirt is no evidence in the record, nor does Partman contend in his briefs, 2 that he would not have been permitted to wear other pants and shoes as well had he requested them or had his attorney provided them. Furthermore, Partman did not object to the fact that he was wearing prison issued clothing prior to appearing before the potential jury. The district court was under no obligation to determine if this was an intentional choice, mere indifference, or lack of preparation. Because neither the government nor the district court was responsible for the fact that Partman appeared before the jury in prison attire, the district court did not err by refusing to disqualify the jury and did not abuse its discretion by denying Partman s motion for a new trial. B. We motion turn for next to judgment Partman s of appeal acquittal. of the Partman denial argues of his that the evidence presented to the jury was insufficient as a matter of law to support a conviction under 18 U.S.C. § 924(c) because there was no indication that he possessed a firearm in a manner 2 Partman states in both his Opening and Reply briefs that he appeared at jury selection in prison clothes through no fault of his own. Appellant s Br. 12; Reply Br. 6. However, he does not claim that he was instructed to wear his detention center jumpsuit or that he requested other clothing, and the district court was not obligated to take action on his behalf to secure other clothing. 9 that furthered any illegal activity. He contends that no evidence established his possession during any particular event, and that no evidence was offered to establish any of the factors identified in United States v. Lomax, 293 F.3d 701 (4th Cir. 2002). The government contends that it presented sufficient evidence to allow the jury to conclude that Partman possessed a semiautomatic weapon that he intended to, and in at least one case attempted to, use to threaten or kill his coconspirator Woods. It argues that this possession was established at trial by Partman s admissions and corroborated by witness testimony. 3 To convict under the possession prong of § 924(c), the jury must find possessed beyond a a reasonable firearm, and (2) doubt that that the the defendant possession furtherance of a drug crime or other crime of violence. States v. Jeffers, 570 F.3d 557, 565 (4th Cir. 2009). was (1) in United To prove that a firearm was possessed in furtherance of a drug crime, the government must present evidence indicating that the possession 3 Partman states in his Opening Brief that the audiotapes containing his purported admissions were questionable. Appellant s Br. 8. He does not, however, elaborate on this assertion or argue that his conviction should be overturned on the basis of improperly admitted evidence. Any argument Partman could have made to exclude the audiotape evidence is therefore waived. IGEN Int l, Inc. v. Roche Diagnostics GmbH, 335 F.3d 303, 308 (4th Cir. 2003); see also Fed. R. App. P. 28(a)(8)(A). 10 of a firearm furthered, trafficking crime. advanced, or helped Lomax, 293 F.3d at 705. forward a drug When making this determination: the fact finder is free to consider the numerous ways in which a firearm might further or advance drug trafficking. For example, a gun could provide a defense against someone trying to steal drugs or drug profits, or it might lessen the chance that a robbery would even be attempted. Additionally, a gun might enable a drug trafficker to ensure that he collects during a drug deal. And a gun could serve as protection in the event that a deal turns sour. Or it might prevent a transaction from turning sour in the first place. Furthermore, a firearm could help a drug trafficker defend his turf by deterring others from operating in the same area. Id. Whether a firearm served such a purpose is ultimately a factual question. jury may Id. consider both When making that determination, the circumstantial as well as direct evidence, and a conviction may rely entirely on circumstantial evidence. 2011). United States v. Bonner, 648 F.3d 209, 213 (4th Cir. Furthermore, a firearm need not be seized to sustain a § 924(c) conviction. Jeffers, 570 F.3d at 566 n.6. The basis for Partman s conviction is unusual because no firearm was recovered and no witness testified to seeing Partman with a firearm in any relevant instance. However, under the particular highly facts of this sufficiency-of-the-evidence case and standard, our we conclude that the jury s verdict was proper. 11 are deferential constrained to As an initial matter, Partman s contention that the proof was insufficient because the government was unable to adduce evidence related to several of the factors articulated in Lomax is meritless. jury might In Lomax, we stated that among the factors the find helpful in determining whether the in furtherance requirement has been satisfied are: [T]he type of drug activity that is being conducted, accessibility of the firearm, the type of weapon, whether the weapon is stolen, the status of the possession (legitimate or illegal), whether the gun is loaded, proximity to drugs or drug profits, and the time and circumstances under which the gun is found. 293 F.3d at 705 (quoting United States v. Ceballos-Torres, 218 F.3d 409, 414-15 (5th Cir. 2000)). Partman argues that his conviction cannot stand because no evidence was presented to establish where or when his firearm was found or what condition it was etc.). 4 in It (easily is accessible, clear, however, loaded, that illegally these factors possessed, can only reasonably be considered when a firearm is seized, and as we held in Jeffers, a possession conviction can be sustained even if no firearm is recovered. As discussed below, Partman s conviction does not rely in any way 4 on seizure Partman type of drug meritless in trafficking in or physical evidence of a firearm, and also asserts that there was no evidence of the activity being conducted, but this is clearly light of the overwhelming evidence of cocaine the record. 12 accordingly concluded the physical Partman attributes possessed are of the simply firearm the irrelevant. jury Lomax accounts for the possibility that the factors it recites might not be applicable to a particular case. We explicitly stated in Lomax that there are many factors that might lead a fact finder to conclude connected to that a his defendant s drug possession trafficking of activity a firearm and that was those factors may include, but are not limited to those stated in the opinion. 293 F.3d at 705. In light of the flexibility of the standard and the irrelevance of the particular facts that Partman claims are necessary, the government s failure to prove them to the jury cannot invalidate Partman s conviction. More generally, there is substantial evidence in the record before us to allow a rational juror to conclude that Partman s conduct violated § 924(c) on these facts. At trial, the government presented Partman s admission that he possessed two firearms in trafficking March of 2011 activities. and J.A. that he 558-61. was It engaged also in drug presented recordings of several phone calls in which Partman admitted that he was currently in possession of a firearm and was attempting to locate Woods in order to shoot him as a result of a bad drug 13 transaction. including 263-64 5; J.A. Rickard and 265 6; Thompson, 268 7. Several testified that witnesses, Partman had admitted to possessing a firearm and had repeatedly threatened to shoot Woods because of Woods s sale of bad cocaine. Because Partman does not challenge the authenticity or admissibility of the recorded evidence or witness testimony on appeal, his sufficiency argument is more accurately understood as a claim that the jury should have adopted his interpretation of the facts instead of the government s version. that the evidence actually supports his claim that He argues he never brought a firearm into Woods s barbershop 8 and that his recorded statements assuming to that his coconspirators Partman s were explanation is mere puffery. plausible, if Even the 5 I told him I d come catch him at the barbershop. I m going to do him. Chopper is in the truck right now. Looking for him. I rode by the barbershop again and that MF ain t there. 6 Whenever I see you, I m going to shoot that whenever I see him, I m going to shoot him, period. 7 I m gonna shoot that boy if I see him. chopper in the truck with me right now. 8 I done got my We note that the parties focus on whether Partman actually brought a firearm into Woods s barbershop is misplaced. Partman was convicted under the possession prong of 924(c), not the use or carrying prong. As described above, under Lomax, the contours of the in furtherance requirement for possession are broad. While an actual armed confrontation or attempted confrontation would be sufficient to satisfy this prong, it is not necessary. 14 evidence supports different, reasonable interpretations, the jury decides which interpretation to believe, and we are not entitled to reweigh that evidence. F.3d 143, 148 (4th Cir. 1994). credit the testimony of United States v. Murphy, 35 The jury was clearly entitled to the coconspirator witnesses and Partman s own admissions if it found them to be convincing. See Bonner, 648 F.3d at 213 ( In assessing the evidence, the jury's resolution of all evidentiary conflicts determinations must be given deference. ). and credibility It is equally clear that Partman s admitted attempt to use a firearm to threaten or kill a coconspirator for providing bad cocaine to a drug dealing conspiracy satisfies both the possession and nexus requirements explained in Lomax. In sum, given the deference accorded credibility determinations and viewed in the light most favorable to the government, we find that the facts here, including Partman s own words, verdict. provide sufficient evidentiary support for the jury We stress the circumstances presented here to indicate the extent to which we rely on them in the absence of physical evidence of the firearm itself or direct eyewitness observation of the violation. C. Finally, we turn to Partman s sentencing claim. Partman argues that the district court s application of the obstruction 15 of justice enhancement was procedurally unreasonable because (1) courts typically only apply the enhancement when cases actually cannot continue to resolution, (2) his conduct caused only minor interruptions to the proceedings because his disruptions were quickly resolved, and (3) the district court did not find that Partman s obstructive actions were willful. The government contends that the enhancement was warranted by the uncontested facts on the record. It also argues that Partman waived any objection he might have had to the district court s reliance on his malingering enhancement and because he feigned failed incompetence to raise to that support argument the in his opening brief. Finally, the government contends that if there was it any error explicitly sentence stated if the was that harmless it would enhancement had because the have given not applied. district Partman the Neither court same party challenges the substantive reasonableness of the sentence. 9 We need not decide on the merits of Partman s objections to dispose of procedural this errors issue. at As the sentencing...are government routinely indicates, subject to harmlessness review and we may assume that a sentencing error 9 Although Partman argues in his Reply brief that the sentence was substantively unreasonable, he waived this argument by failing to raise it in his opening brief. See IGEN Int l, 335 F.3d at 308 (4th Cir. 2003); Fed. R. App. P. 28(a)(8)(A). 16 occurred and proceed to examine whether the error affected the sentence imposed. United States v. Hargrove, 701 F.3d 156, 161 (4th Cir. 2012) (quoting Puckett v. United States, 556 U.S. 129, 141 (2009)). A sentencing error is harmless if the resulting sentence was not longer than that to which [the defendant] would otherwise be subject. 283 (4th Cir. 2010). United States v. Mehta, 594 F.3d 277, Assuming error in certain cases allows us to avoid the empty formality of an unnecessary remand where it is clear that an asserted guideline miscalculation did not affect the ultimate sentence. The assumed error Hargrove, 701 F.3d at 163. harmlessness inquiry requires (1) knowledge that the district court would have reached the same result even if it had decided the guidelines issue the other way, and (2) a determination that the sentence would be reasonable even if the guidelines issue had been decided in the defendant s favor. Id. at 162 (quoting United States v. Savillon-Matute, 636 F.3d 119, 123 (4th Cir. 2011)) (internal quotation marks and citations omitted). An explicit statement that the district court would have applied the same sentence absent a particular sentencing enhancement is not required to satisfy the first step of this analysis, but in this case the district court provided exactly that. At sentencing, the district court stated that [f]or all these reasons, as well as those I have outlined previously, 17 I find that the sentence imposed in this case, 396 months, is the correct sentence even if the obstruction of justice enhancement had not been imposed in the case. 10 J.A. 767. An explicit statement by the district court satisfies the first step of the inquiry and renders the substantive reasonableness of the sentence dispositive. See Hargrove, 701 F.3d at 163. The district court sentenced Partman to a term of imprisonment of 396 months, based on a criminal history category of II, a total offense level of 40, including the two-level obstruction enhancement, and the 60 month consecutive sentence mandated guideline by Partman s range for 18 an U.S.C. offense § 924(c) level of conviction. 38 history category of II is 262 to 327 months. and a The criminal With the addition of the mandatory 60 month sentence, but without the two-level enhancement, the highest within-guidelines sentence that the district court could have imposed on Partman is 387 months, 9 months less than the sentence actually imposed. In reviewing any sentence, whether inside, just outside, or significantly outside the Guidelines 10 range, we apply a The district court s reasons as recounted at sentencing were the particular egregiousness of the drug trafficking activities, including the 14 year duration of the conspiracy, the significant volume of drugs, Partman s possession of firearms, and his use of those firearms to threaten people in the course of his drug trafficking. J.A. 766-67. 18 deferential abuse-of-discretion standard. Savillon-Matute, 636 F.3d at 122 (quoting Gall, 552 U.S. at 41). to presume that a correctly calculated sentence is reasonable on appeal. within-guidelines United States v. Mendoza- Mendoza, 597 F.3d 212, 216 (4th Cir. 2010). sentence exceeds the guidelines We are entitled range, we However, when a may consider the extent of the deviation [from the guidelines range], but must give due deference to the district court s decision that the § 3553(a) factors on a whole, justify the extent of the variance. Hargrove, 701 F.3d at 163-64 (quoting Gall, 552 U.S. at 51). A finding of substantive reasonableness is warranted when the record reflects that the district court conducted a thorough individualized assessment of [the defendant] and his offense conduct in light of the [3553(a)] factors. Id. at 164. In this case it is clear that the district court undertook such an assessment, finding that Partman s conduct, including his dealing over 50 kilograms of cocaine and crack, engaging in a high-speed chase with the police, and using a semi-automatic weapon in connection elevated sentence. with his drug trafficking warranted an The court also considered Partman s minimal criminal history, difficult upbringing, and the need to avoid sentencing disparities with codefendants as possible mitigating factors. acceptance Finally it considered Partman s lack of remorse or of responsibility. See 19 generally 18 U.S.C. § 3553(a). Considering the district court s thorough analysis, the small degree of the variance from the guidelines range, and the fact that neither party challenged the substantive reasonableness of the sentence, Partman s sentence satisfies the second prong of the Savillon-Matute analysis. On the record before us, even assuming that the application of the obstruction of justice enhancement was erroneous, we conclude that the error was harmless and the district court did not abuse its discretion by sentencing Partman to 396 months imprisonment. IV. For the foregoing reasons, the district court s denial of Partman s motion for a new trial, denial of Partman s motion for judgment of acquittal, and application of a two-level enhancement for obstruction of justice are AFFIRMED. 20

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