Rehearing granted, February 13, 2006
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4064
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
LESLIE FOUNTRESA FREEMAN,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Graham C. Mullen, Chief
District Judge. (CR-02-191-MU)
Submitted: August 25, 2004 Decided: December 9, 2004
Before WIDENER, WILKINSON, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Chiege O. Kalu Okwara, LAW OFFICE OF CHIEGE O. KALU OKWARA,
Charlotte, North Carolina, for Appellant. Gretchen C. F. Shappert,
United States Attorney, D. Scott Broyles, Assistant United States
Attorney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
PER CURIAM:
Leslie Fountresa Freeman appeals her convictions and
sentence for possession with intent to distribute 500 grams or more
of cocaine under 21 U.S.C. § 841(a)(1) (2000), and importation of
500 grams or more of cocaine into the United States under 21 U.S.C.
§ 952(a) (2000).
On July 26, 2002, Freeman arrived in Charlotte, North
Carolina, from Montego Bay, Jamaica. After going through an initial
inspection with the customs agent, Freeman was sent for a secondary
inspection because she appeared to be nervous. A search of her
suitcases revealed 2.07 pounds of powdered cocaine concealed in the
side rails. Special Agent Jennifer Havies testified that Freeman
was questioned regarding the cocaine and gave inconsistent
statements as to the number of suitcases she had taken to Jamaica
and the name of the person who paid for her ticket (Antwan Freeman
or Antwan Stanley). Freeman testified and denied any knowledge of
the cocaine in her suitcase. She stated that she had made a mistake
when she told the customs agent that Antwan Freeman had purchased
her ticket.
At the close of the Government’s case, Freeman moved for
a judgment of acquittal, asserting that the evidence was
insufficient to support the charges because the evidence at trial
showed Freeman possessed less than 500 grams but the indictment
alleged more than 500 grams of cocaine. The district court deferred
ruling on the motion. At the close of the case, Freeman renewed her
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motion for a judgment of acquittal, which the court denied. Freeman
also raised the possibility that failure to submit the drug amount
to the jury would violate the ruling in Apprendi v. New Jersey, 530
U.S. 466 (2000). However, the court explained that Apprendi was not
an issue because the drug quantity in this case would not increase
the maximum penalty. Consequently, in its instructions to the jury,
the district court explained that the evidence at trial revealed
less than 500 grams of cocaine and that the jury should not consider
the specific quantity in making its determination because it was not
an essential element of the offense. The jury found Freeman guilty
on both counts.
At sentencing, the district court sustained the
Government’s objections to the presentence investigation report’s
(“PSR”) finding that a two-level enhancement for obstruction of
justice was not warranted. With the two-level enhancement, Freeman
was sentenced to fifty-one months of imprisonment on each count, to
be served concurrently, and a three-year term of supervised release.
Freeman contends that the district court erred in denying
her motion for a judgment of acquittal. This court reviews de novo
a district court’s decision to deny a motion for judgment of
acquittal. United States v. Gallimore, 247 F.3d 134, 136 (4th Cir.
2001). When, as here, the motion challenges the sufficiency of the
evidence at trial, the relevant question is whether, taking the view
most favorable to the Government, there is substantial evidence to
support the jury verdict. See Glasser v. United States, 315 U.S.
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60, 80 (1942). “[S]ubstantial evidence is evidence that a
reasonable finder of fact could accept as adequate and sufficient to
support a conclusion of a defendant’s guilt beyond a reasonable
doubt.” United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996).
The offense of possession with the intent to distribute
drugs requires that the Government prove beyond a reasonable doubt
that the defendant: (1) knowingly, (2) possessed the drugs, (3) with
the intent to distribute them. Id. at 873. An intent to distribute
can be inferred if the amount of drugs found exceeds an amount
associated with personal consumption. See United States v. Wright,
991 F.2d 1182, 1187 (4th Cir. 1993). To prove that Freeman
unlawfully imported cocaine under 21 U.S.C. § 952(a), the Government
had to show that Freeman: (1) knowingly, (2) imported a narcotic
controlled substance into the United States, (3) from any place
outside of the United States. 21 U.S.C. § 952(a); United States v.
Restrepo-Granda, 575 F.2d 524 (5th Cir. 1978) (holding that
knowledge that a substance is a controlled substance is an element
of § 952).
We find that there was sufficient evidence to support both
convictions. The evidence at trial showed that Freeman arrived in
Charlotte, North Carolina, from Montego Bay, Jamaica, carrying 386
grams of powdered cocaine in her suitcase (an amount exceeding any
amount associated with personal consumption). Freeman appeared to
be nervous at the customs inspection, gave inconsistent statements
as to the number of suitcases she had taken to Jamaica and the name
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of the person who paid for her ticket, and gave evasive answers.
Freeman’s only argument on appeal is that the evidence at trial,
showing the drug quantity to be 386 grams, varied from the facts in
the indictment, alleging more than 500 grams of cocaine. However,
because drug quantity is not an element of the offense, we find that
this argument is without merit. See United States v. Angle, 254
F.3d 514, 517 (4th Cir. 2001). Further, to the extent there was a
variance, there is no evidence that Freeman was convicted of an
offense other than that charged in the indictment or that the
alleged variance infringed Freeman’s substantial rights and resulted
in actual prejudice. See United States v. Kennedy, 32 F.3d 876, 883
(4th Cir. 1994); United States v. Schnabel, 939 F.2d 197, 203 (4th
Cir. 1991). Therefore, the district court did not err in denying
Freeman’s motion for a judgment of acquittal.
Freeman maintains that the district court erred in
applying a two-level sentencing enhancement for obstruction of
justice. Such an enhancement is allowed when a defendant willfully
obstructs or impedes the administration of justice during the
investigation, prosecution, or sentencing of an offense. U.S.
Sentencing Guidelines Manual § 3C1.1 (2002). The district court’s
factual findings are reviewed for clear error, and its application
of the sentencing guidelines is reviewed de novo. United States v.
Daughtrey, 874 F.2d 213, 217 (4th Cir. 1989). The district court
determines issues related to sentencing by a preponderance of the
evidence standard. United States v. Engleman, 916 F.2d 182, 184
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(4th Cir. 1990).
The PSR did not recommend an obstruction of justice
enhancement. The Government objected to the PSR and argued that an
enhancement was warranted because Freeman testified at trial and
denied involvement in the criminal activities for which she was
found guilty. The district court, citing United States v. Dunnigan,
507 U.S. 87 (1993), concluded that an obstruction of justice
enhancement was required because Freeman denied any involvement with
drugs at trial. Freeman objected to the enhancement on the grounds
that she did not receive notice of the possible enhancement.
Obstruction of justice includes “committing, suborning,
or attempting to suborn perjury,” and “providing materially false
information to a judge or magistrate.” USSG § 3C1.1, comment.
(n. 4). Material information means information that “would tend to
influence or affect the issue under determination.” USSG § 3C1.1,
comment. (n. 6). This court has held that perjury is established
when the sentencing court finds by a preponderance of the evidence
that a witness who testifies under oath or affirmation: (1) gives
false testimony; (2) concerning a material matter; (3) with the
willful intent to deceive, rather than as a result of confusion or
mistake. United States v. Jones, 308 F.3d 425, 428 n.2 (4th Cir.
2002) (citing Dunnigan, 507 U.S. at 92-98), cert. denied, 537 U.S.
1241 (2003).
Because not every accused who testifies at trial and is
convicted is subject to the sentencing enhancement, a district court
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must review the evidence and make the independent findings necessary
to establish a willful impediment to or obstruction of justice, or
an attempt to do the same. Dunnigan, 507 U.S. at 95. When making
the findings, it is preferable for a district court to address each
element of the alleged perjury in a separate and clear finding.
“The district court’s determination that enhancement is required is
sufficient, however, if . . . the court makes a finding of an
obstruction of, or impediment to, justice that encompasses all of
the factual predicates for . . . perjury.” Id.; see also United
States v. Stotts, 113 F.3d 493, 498 (4th Cir. 1997) (requiring the
district court to address each element of the alleged perjury in a
separate finding or make a global finding that encompasses each
factual predicate for a perjury finding).
We first agree with the district court that Freeman received
adequate notice of the enhancement as required by Fed. R. Crim. P.
32. Defense counsel was first notified of the Government’s
objection by letter on August 13, 2003. On September 11, 2003, the
probation officer’s addendum to the PSR stated that the objection
had been reviewed and that the court would rule on unresolved issues
at sentencing, which was held on November 18, 2003. At sentencing,
the district court gave defense counsel and the defendant the
opportunity to be heard on the enhancement.
At sentencing, the court did not expressly address the three
elements required for an obstruction of justice enhancement. Rather,
the court stated that Freeman’s case required an obstruction of
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justice enhancement because she took the stand and denied any
involvement in any criminal activity. The main issue in the case
was whether Freeman knowingly possessed cocaine in her suitcase.
Because Freeman testified under oath that she did not know that
there was cocaine in her suitcase, and the jury found that she
knowingly possessed with intent to distribute cocaine and knowingly
imported cocaine, we uphold the district court’s finding of
obstruction as it “sufficiently encompassed all of the factual
predicates for a perjury finding.” Stotts, 113 F.3d at 498; see
also United States v. Godwin, 272 F.3d 659, 671 (4th Cir. 2001).
We therefore deny Freeman’s request for appointment of new
counsel and affirm her convictions and sentence. We dispense with
oral argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.
AFFIRMED
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