United States v. Hull

                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 07-4925


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

BRAD CHRISTOPHER HULL,

                Defendant – Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Lynchburg.  Norman K. Moon, District
Judge. (6:06-cr-00013-nkm)


Submitted:   February 8, 2010                  Decided:   March 5, 2010


Before WILKINSON and     NIEMEYER,   Circuit   Judges,    and   HAMILTON,
Senior Circuit Judge.


Affirmed by unpublished per curiam opinion.


Steven Jay Rozan, STEVEN JAY ROZAN & ASSOCIATES, Houston, Texas,
for Appellant. Julia C. Dudley, Acting United States Attorney,
Jean    B.   Hudson,    Assistant    United   States   Attorney,
Charlottesville, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

               Brad Christopher Hull was convicted after a jury trial

of one count of conspiracy to distribute and to possess with the

intent to distribute more than five kilograms of cocaine, in

violation       of     21       U.S.C.    § 846       (2006).      The    district      court

sentenced       Hull       to    292     months’      imprisonment.        Hull    appeals,

asserting that the district court erred in denying his Fed. R.

Crim. P. 29 motions for judgment of acquittal, admitting witness

testimony,       instructing             the   jury,     and    calculating       his   base

offense level under the U.S. Sentencing Guidelines Manual (2006)

without a jury finding the facts supporting that level beyond a

reasonable doubt.               We affirm.

               This court reviews de novo the district court’s denial

of Rule 29 motions for judgment of acquittal.                            United States v.

Reid, 523 F.3d 310, 317 (4th Cir.), cert. denied, 129 S. Ct. 663

(2008).     A defendant challenging the sufficiency of the evidence

“bears a heavy burden.”                    United States v. Beidler, 110 F.3d

1064, 1067 (4th Cir. 1997) (internal quotation marks omitted).

The jury’s verdict must be sustained “if, viewing the evidence

in the light most favorable to the prosecution, the verdict is

supported by substantial evidence.”                      United States v. Smith, 451

F.3d     209,        216        (4th Cir. 2006)         (internal        quotation      marks

omitted).       Substantial evidence is “evidence that a reasonable

finder    of    fact        could      accept     as    adequate    and    sufficient      to

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support a conclusion of a defendant’s guilt beyond a reasonable

doubt.”     Id. (internal quotation marks omitted).                        In reviewing

for      substantial      evidence,          this          court     considers          both

circumstantial and direct evidence and allows the Government all

reasonable inferences from the facts shown to those sought to be

established.           United     States        v.     Harvey,       532 F.3d 326, 333

(4th Cir. 2008).        This court does not weigh evidence or review

witness credibility.         United States v. Wilson, 118 F.3d 228, 234

(4th Cir. 1997).         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).

            To convict Hull of conspiracy to distribute and to

possess with the intent to distribute cocaine, the Government

was required to establish beyond a reasonable doubt that: (1)

two or more persons agreed to distribute and possess with the

intent    to    distribute      the   drug,          and   (2)     Hull   knew     of    the

conspiracy and (3) “knowingly and voluntarily became a part” of

the conspiracy.         United States v. Yearwood, 518 F.3d 220, 227

(4th   Cir.)    (internal       quotation       marks      omitted),      cert.    denied,

129 S.    Ct.   137    (2008).        “The      gravamen      of    the    crime    is   an

agreement to effectuate a criminal act.”                         Id. at 226 (internal

quotation      marks   omitted).        A    defendant        may    be   convicted      of

conspiracy without knowing all of its details, as long he enters

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the conspiracy understanding that it is unlawful and willfully

joins in the plan at least once.                 See United States v. Burgos,

94 F.3d 849, 858 (4th Cir. 1996) (en banc).

              Hull    contends     that    the   evidence   is    insufficient       to

support       his    conviction      because      Government       witnesses       gave

inconsistent and unbelievable testimony.                  This challenge fails,

however, 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.      Further, after review of the record, we conclude that

there was sufficient evidence from which a jury could conclude

that Hull agreed with others to distribute and possess with the

intent    to    distribute       cocaine    and    knowingly      and   voluntarily

participated in a scheme to do so.                 We therefore conclude that

the    district      court   did    not    err    in   denying    Hull’s     Rule    29

motions.

              Next, Hull argues that the district court abused its

discretion under Fed. R. Evid. 404(b) by allowing a witness to

testify about his prior cocaine base purchases from Hull.                          This

court typically reviews a district court’s evidentiary rulings

for abuse of discretion.              United States v. Perkins, 470 F.3d

150, 155 (4th Cir. 2006).             An abuse of discretion occurs only

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when the district court “acted arbitrarily or irrationally in

admitting evidence.”         United States v. Williams, 445 F.3d 724,

732 (4th Cir. 2006) (internal quotation marks omitted).

           Although        not    admissible    to    prove      the     defendant’s

character, evidence of other “crimes, wrongs, or acts” may be

admitted   to    prove     “motive,      opportunity,     intent,      preparation,

plan, knowledge, identity, or absence of mistake or accident.”

Fed. R. Evid. 404(b); see United States v. Hodge, 354 F.3d 305,

311-12 (4th Cir. 2004).           Rule 404(b) is a rule of inclusion that

allows evidence of other crimes or acts to be admitted, except

that which tends to prove only criminal disposition.                     See United

States v. Queen, 132 F.3d 991, 994-95 (4th Cir. 1997).                     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.”

Hodge, 354 F.3d at 312.            “Additionally, the probative value of

the   evidence     must    not    be   substantially      outweighed”        by    its

prejudicial effect.        Id.

           We     conclude       these     elements      are   satisfied      here.

Evidence of Hull’s prior drug sales was not admitted for the

purpose of establishing his character.                  Hull was charged with

conspiracy   to    distribute      and    to   possess    with    the     intent   to

distribute      cocaine,    and    evidence     of    Hull’s     prior    sales    of

cocaine base was relevant to Hull’s knowledge, identity as a

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member    of    the     conspiracy,         and          the    absence     of    mistake.        To

convict    Hull       of     the    conspiracy                charge,    the     Government      was

required to show that Hull knew of the conspiracy and knowingly

and voluntarily became a part of it.                                    Hull’s prior sale of

cocaine base to a repeat buyer over two years was relevant and

necessary to demonstrating that Hull had knowledge of drug sales

and that his participation in the conspiracy was not an accident

or mistake.          Hull does not assert that the witness testimony was

unreliable.          Finally, we conclude that the probative value of

the evidence was not substantially outweighed by confusion or

unfair prejudice.              Although this information was damaging to

Hull, it was not unfairly prejudicial, nor did it “subordinate

reason to emotion in the factfinding process.”                                  United States v.

Gray,    405    F.3d       227,    239    (4th       Cir.       2005)     (internal      quotation

marks    omitted).           Accordingly,                we   conclude     that    the    district

court did not abuse its discretion in admitting the disputed

testimony under Rule 404(b).

               Hull        also     asserts              that      the     district           court’s

instructions to the jury violated United States v. Collins, 415

F.3d 304, 311-15 (2005) (holding that in order for a district

court     to    determine          which        of        the    three     graduated          penalty

subsections of 21 U.S.C. § 841(b) (2006) applies to a defendant

convicted       of     a    § 846        drug        conspiracy,          the     jury    must    be

instructed       to        determine       the           threshold       quantity        of    drugs

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attributable to each conspiracy defendant on trial).                                       Because

Hull failed to object to the district court’s instructions on

this    ground,     we    review       this       claim       for     plain     error.      United

States    v.    Olano,     507     U.S.          725,    732     (1993).         To     meet    this

standard, Hull must show: (1) error existed; (2) the error was

plain; and (3) the error affected his substantial rights.                                        Id.

at 731-34.        Even if Hull makes this showing, we will exercise

our discretion to notice the error only if it “seriously affects

the     fairness,        integrity         or      public        reputation        of     judicial

proceedings.”            Id.     at        736     (internal           quotation        marks    and

alteration       omitted).         Hull          fails      to       establish    plain     error,

however, as the district court’s instructions directed the jury

to find the amount of cocaine attributable to Hull.                                     Therefore,

this claim fails.

               Finally,     we     conclude             that     Hull’s       Sixth      Amendment

rights    were    not     violated         when       the      district       court     calculated

Hull’s base and total offense levels and resulting Guidelines

range    based     on     facts       it    found        by      a    preponderance        of    the

evidence.       Because the district court appropriately treated the

resultant       Guidelines        range          as     advisory,         and     since     Hull’s

sentence    was     within       the    statutory           maximum       authorized       by    the

jury’s verdict, we find that the district court fully complied

with the Sixth Amendment.                  See United States v. Booker, 543 U.S.

220,     232-44      (2005)           (holding           that         judge-found         sentence

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enhancements     mandatorily       imposed       under        the     Guidelines         that

result in a sentence greater than that authorized by the jury

verdict or facts admitted by the defendant violate the Sixth

Amendment’s guarantee of the right to trial by jury); see also

Rita v. United States, 551 U.S. 338, 352 (2007) (recognizing

that its “Sixth Amendment cases do not automatically forbid a

sentencing     court     to    take      account       of   factual         matters      not

determined     by    a    jury     and     to    increase           the     sentence      in

consequence”);      United     States     v.    Benkahla,       530       F.3d    300,    312

(4th Cir. 2008) (recognizing only that “the Guidelines must be

advisory, not that judges may find no facts”), cert. denied, 129

S. Ct. 950 (2009).

            We therefore affirm the district court’s judgment and

deny Hull’s motion seeking leave to file a pro se supplemental

brief.     We dispense with oral argument because the facts and

legal    conclusions     are     adequately      presented          in    the     materials

before   the   court     and   argument        would    not    aid        the    decisional

process.

                                                                                   AFFIRMED




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