United States v. Troupe

                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 07-5030


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

COREY JERMAINE TROUPE,

                  Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk.      Henry Coke Morgan, Jr.,
Senior District Judge. (2:07-cr-00046-HCM)


Submitted:    October 31, 2008              Decided:   December 10, 2008


Before NIEMEYER, GREGORY, and AGEE, Circuit Judges.


Affirmed in part; vacated and remanded in part by unpublished
per curiam opinion.


Michael S. Nachmanoff, Federal Public Defender, Keith Loren
Kimball, Frances H. Pratt, Assistant Federal Public Defenders,
Norfolk, Virginia, for Appellant.       Chuck Rosenberg, United
States Attorney, Richard D. Cooke, William D. Muhr, Assistant
United States Attorneys, Norfolk, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Following       a    jury    trial,    Corey     Jermaine      Troupe    was

convicted of possession with intent to distribute approximately

53.8 grams of cocaine, in violation of 21 U.S.C.A. § 841(a)(1),

(b)(1)(C) (West 1999 & Supp. 2008) (Count One); possession of a

firearm in furtherance of a drug trafficking crime, in violation

of 18 U.S.C. § 924(c)(1) (2006) (Count Two); and possession of a

firearm     by    a    convicted    felon,       in      violation    of   18     U.S.C.

§§ 922(g)(1),         924(e)(1)    (2006)       (Count    Three).       The     district

court sentenced Troupe to 164 months in prison on Count One, a

consecutive sixty months in prison on Count Two, and 120 months

in prison on Count Three, to be served concurrently with the

other sentences, for a total of 224 months in prison.                             Troupe

timely appealed.

            At    the    close     of    the    Government’s       evidence,      Troupe

filed a motion for judgment of acquittal pursuant to Rule 29 of

the   Federal      Rules    of    Civil     Procedure,       contending       that   the

Government had failed to establish venue.                          Specifically, the

Government       had    presented       evidence      that   the     relevant    events

occurred     in    Greensville      County,       Virginia,     but     neglected    to

establish that Greensville County was in the Eastern District of

Virginia.        Rather than grant the Rule 29 motion, the district

court permitted the Government to reopen its case to establish

that Greensville County is in the Eastern District of Virginia.

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Troupe    contends         on    appeal      that     the    district        court   erred    by

denying    the       Rule       29     motion       and    abused     its     discretion     by

permitting the Government to reopen its case to establish venue.

               A court may take judicial notice that venue is proper

in a particular district.                     United States v. Kelly, 535 F.3d

1229, 1235-36 (10th Cir. 2008); United States v. Greer, 440 F.3d

1267, 1272 (11th Cir. 2006); cf. United States v. Lavender, 602

F.2d    639,    641     (4th         Cir.   1979)    (holding       that     court   may    take

judicial        notice           that        crime         occurred         within     federal

jurisdiction).             In light of the evidence that the events in

question       occurred         in    Greensville         County,     the    district      court

could    have    taken      judicial         notice       that   proper      venue   had    been

established and denied the Rule 29 motion on this basis.

               Rather      than       take    judicial       notice     of    proper    venue,

however,       the     district         court       took     the    additional       step     of

permitting the Government to reopen its case to establish venue.

A court may allow the Government to reopen its case-in-chief to

present additional evidence after a defendant moves for judgment

of acquittal, United States v. Gray, 405 F.3d 227, 238 n.5 (4th

Cir.    2005),       and   its        decision      will    be   reviewed      for   abuse    of

discretion.          United States v. Abbas, 74 F.3d 506, 510 (4th Cir.

1996).     We find no abuse of discretion in the district court’s

decision to permit the Government to reopen its case-in-chief to

establish proper venue.

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              Next, Troupe argues that the district court improperly

permitted the Government to impeach him with a thirteen-year-old

conviction, in violation of Rule 609 of the Federal Rules of

Evidence.       “Rule 609 is an impeachment rule which governs the

admissibility of evidence of certain criminal convictions of a

witness       when     offered       to    impeach    that     witness      by    proving

character for untruthfulness.”                United States v. Norton, 26 F.3d

240,    243     (1st    Cir.     1994).       The    rule     does   not    govern    the

introduction of prior convictions offered to contradict specific

testimony.         Norton, 26 F.3d at 243-44; United States v. Leavis,

853 F.2d 215, 220 (4th Cir. 1988).                      Accordingly, when Troupe

testified that he was not and never had been a drug dealer, Rule

609     did   not      prohibit      the     Government      from    introducing      his

thirteen-year-old            conviction      for     possession      with    intent    to

distribute cocaine to contradict Troupe’s claim.

              Finally, Troupe asserts that the sentence imposed by

the     district        court       was     unreasonable       because      the    court

miscalculated his guideline range.                  The Government agrees.

              This     court       reviews    a    sentence    for    reasonableness,

applying      an     abuse    of     discretion      standard.       Gall    v.    United

States, 128 S. Ct. 586, 597 (2007); see also United States v.

Pauley, 511 F.3d 468, 473 (4th Cir. 2007). The appellate court

first    must      ensure     that    the    trial    court    did   not    commit    any

procedural error, such as “failing to calculate (or improperly

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calculating)         the    Guideline    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, or failing to adequately explain the chosen

sentence--including an explanation for any deviation from the

Guideline range.”            Gall, 128 S. Ct. at 597.          If the court finds

the sentence to be procedurally sound, it then considers the

substantive          reasonableness       of     the     sentence,      taking      into

consideration the totality of the circumstances.                     Id.

            Troupe received a base offense level of twenty-four

under U.S.       Sentencing         Guidelines    Manual    § 2K2.1(a)(2)        (2006).

The guidelines establish a base offense level of twenty-four “if

the defendant committed any part of the subject offense after

sustaining at least two felony convictions of either a crime of

violence        or     a      controlled        substance      offense.”            USSG

§ 2K2.1(a)(2).             The application notes direct that only felony

convictions that are assigned criminal history points under USSG

§ 4A1.1(a), (b), or (c) should count for determining the base

offense level under USSG § 2K2.1.                      USSG § 2K2.1 cmt. (n.10).

One of the convictions used to establish Troupe’s base offense

level was a conviction for possession of cocaine with intent to

distribute, which is not included within USSG § 4A1.1(a), (b),

or (c).    Accordingly, the district court erred by counting this

offense    in    establishing         Troupe’s    base    offense    level.      Without

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this error, Troupe’s base offense level would have been twenty

instead of twenty-four.          USSG § 2K2.1(a)(4)(A).

            Troupe’s       offense      level      also    was     increased      by    four

levels pursuant to USSG § 2K2.1(b)(6) for possessing the firearm

in   connection     with      another    felony,      namely       drug    distribution.

However,    where,      as    here,     the       defendant      is    convicted       of    a

§ 924(c)    offense      in    addition       to     the   § 922(g)        offense,      the

§ 2K2.1(b)(6) enhancement does not apply.                          USSG § 2K2.4 cmt.

(n.4)

            With    a   corrected       base       offense    level       of   twenty       and

placement   in     criminal     history       category       VI,      Troupe’s    properly

calculated guideline range would have been seventy to eighty-

seven months’ imprisonment, rather than the 140 to 175 month

guideline range calculated by the district court.                          By failing to

properly calculate Troupe’s guideline range, we hold that the

district court committed “significant procedural error.”                            United

States v. Matamoros-Modesta, 523 F.3d 260, 263 (4th Cir. 2008).

We therefore conclude that the sentence imposed by the district

court is unreasonable.

            Accordingly,         we     affirm       Troupe’s         convictions,       but

vacate his sentence and remand for resentencing.                               We dispense

with oral argument because the facts and legal contentions are




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adequately   presented   in   the   materials   before   the   court   and

argument would not aid the decisional process.



                                                    AFFIRMED IN PART;
                                         VACATED AND REMANDED IN PART




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