UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-5125
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
FREDERICK I. HOWARD,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling. Frederick P. Stamp, Jr.,
District Judge. (CR-04-9)
Submitted: May 31, 2005 Decided: September 15, 2005
Before MOTZ, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Heather A. Wood, FRANKOVITCH, ANETAKIS, COLANTONIO & SIMON,
Weirton, West Virginia, for Appellant. Thomas E. Johnston, United
States Attorney, John C. Parr, Assistant United States Attorney,
Wheeling, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
On September 13, 2004, a jury convicted Frederick Howard
of conspiracy to distribute less than five kilograms but more than
five hundred grams of cocaine in violation of 21 U.S.C. §§ 846 and
841(b)(1)(B) (2000). The district court sentenced Howard to 121
months’ imprisonment. Howard challenges his conviction and
subsequent sentence. We affirm.
Howard came to the attention of police after they
initiated an investigation into the activities of co-defendant Paul
Norman. Norman distributed cocaine out of two bars in which he had
a business interest. Co-conspirators Jason Thorn, Corey Doran, and
Thomas Leach handled cocaine sales. Norman’s chief source of
supply was Don McFarland.
Thorn started buying cocaine from Howard in late 2003.
Thorn and Norman both testified that Thorn told Norman he could get
better quality cocaine from Howard. Norman tried Howard’s cocaine
and continued to purchase it until they were arrested in April
2004. Norman estimated he received seventy to eighty ounces of
cocaine from Howard. This ongoing arrangement was confirmed by
police wiretaps.
During that time, on November 7, 2003, Howard was a
passenger in a vehicle that was stopped by police for having a
broken license plate light. During the stop, Howard tried to exit
the vehicle twice. The driver was unable to provide a license,
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proof of insurance or registration. The police learned that the
driver’s license had been suspended. The police then intended to
arrest the driver and requested all the passengers exit the
vehicle. When Howard exited the vehicle, officers saw a plastic
baggie containing white residue hanging from Howard’s pocket.
Howard underwent a “pat down” search that revealed a wad of money
large enough to conceal a weapon. The wad of money concealed a
second baggie of white powder, which later analysis confirmed to be
cocaine.
On March 20, 2004, Howard called Holly Ruble, who then
called Thorn, in order to warn Norman that Howard had spotted a van
following Norman. Howard then called Norman directly. Police were
in fact following Norman. Norman had arranged to purchase cocaine
and eventually completed the transaction.
Other witnesses testified they purchased cocaine from
Howard. Robert Becker testified he purchased $600-$800 worth of
cocaine per month for a year to a year and a half. Also, Leach
testified that through Thorn, he purchased five ounces of cocaine
on four or five occasions after an initial purchase of three
ounces. Leach’s testimony was corroborated by Thorn.
Howard challenges his conviction and sentence on several
grounds. First, he contends that the district court abused its
discretion by denying his motion for a continuance. Howard
submitted the motion the day after his attorney received a thousand
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pages of discovery on August 5, 2004.1 Howard’s attorney asserted
in the motion that she did not have enough time to review the
August 5 documents and surveillance video before the September 7,
2004 trial date.2
We review the denial of a motion for a continuance to
discover whether the district court abused its broad discretion and
prejudiced the movant. United States v. Bakker, 925 F.2d 728, 735
(4th Cir. 1991). A district court abuses its discretion in denying
a continuance only if the denial was “an unreasoning and arbitrary
‘insistence upon expeditiousness in the face of a justifiable
request for delay.’” Morris v. Slappy, 461 U.S. 1, 11-12 (1983)
(quoting Ungar v. Sarafite, 376 U.S. 575, 589 (1964)). The test
for deciding whether the court abused its discretion is not
mechanical; it depends on the reasons presented to the court at the
time the request is made. United States v. LaRouche, 896 F.2d 815,
823 (4th Cir. 1990). We conclude the district court did not abuse
its discretion in denying the motion for a continuance because
Howard’s counsel had ample time to prepare for trial, and Howard
has not demonstrated prejudice.
1
The Government asserted at trial and in its brief that Howard
received 627 pages on August 5, 2004.
2
At trial, Howard primarily argued that the case should be
continued until the Supreme Court issued an opinion in United
States v. Booker, 125 S. Ct. 738 (2005). Howard has abandoned that
argument on appeal.
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Second, Howard asserts that the cocaine found in his
pocket by police during the November 7, 2003 traffic stop was the
fruit of an improper search and seizure. This court reviews a
district court’s factual findings on a suppression motion for clear
error and its legal conclusions de novo. United States v.
Grossman, 400 F.3d 212, 216 (4th Cir. 2005). When a suppression
motion has been denied, this court reviews the evidence in the
light most favorable to the Government. United States v. Perkins,
363 F.3d 317, 320 (4th Cir. 2004), cert. denied, 125 S. Ct. 867
(2005).
Probable cause that a routine automobile violation has
occurred justifies a routine traffic stop. Whren v. United States,
517 U.S. 806 (1996). An officer making a lawful traffic stop may
require passengers to step out of the vehicle. Maryland v. Wilson,
519 U.S. 408, 415 (1997). Once they have done so, the police may
conduct a limited, protective search for weapons provided they have
an articulable suspicion to believe the detained individual is
armed. Terry v. Ohio, 392 U.S. 1, 30 (1968).
Here, the uncontradicted evidence shows the police had
probable cause to stop the automobile because it had a defective
license plate light and, therefore, it was permissible for the
police to order Howard out of the vehicle. Given Howard’s two
earlier attempts to exit the vehicle and the baggie containing drug
residue protruding from his pocket in plain view, the police had
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the articulable suspicion necessary to conduct the pat down search.
See United States v. Sakyi, 160 F.3d 164, 169 (4th Cir. 1998)
(“[W]e hold that in connection with a lawful traffic stop of an
automobile, when the officer has a reasonable suspicion that
illegal drugs are in the vehicle, the officer may, in the absence
of factors allaying his safety concerns, order the occupants out of
the vehicle and pat them down briefly for weapons to ensure the
officer’s safety and the safety of others.” Therefore, we conclude
that the district did not err in denying Howard’s motion to
suppress.
Third, Howard also argues that the evidence discovered
during the November 7, 2003 traffic stop was improperly admitted
under Fed. R. Evid. 404(b). However, evidence of other crimes or
uncharged conduct is not excluded by Fed. R. Evid. 404(b) if the
conduct “arose out of the same . . . series of transactions as the
charged offense, . . . or if it is necessary to complete the story
of the crime [on trial].” United States v. Kennedy, 32 F.3d 876,
885 (4th Cir. 1994) (quoting United States v. Towne, 870 F.2d 880,
886 (4th Cir. 1989)). We conclude possession of cocaine is direct
evidence of Howard’s participation in a conspiracy to distribute
cocaine, and the district court did not err by admitting the
evidence.
Fourth, Howard asserts that the evidence was insufficient
to convict him of conspiracy to distribute cocaine despite the
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testimony of multiple co-defendants and the recordings of Howard’s
telephone conversations with them. When a motion for judgment of
acquittal is based on insufficiency of the evidence, the verdict
must be sustained if there is substantial evidence, taking the view
most favorable to the Government, to support it. See Glasser v.
United States, 315 U.S. 60, 80 (1942). Substantial evidence is
defined as “that evidence which ‘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.
Newsome, 322 F.3d 328, 333 (4th Cir. 2003) (quoting United States
v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc)). This court
does not review the credibility of witnesses, and we must assume
that the jury resolved all evidentiary contradictions in the
Government’s favor. United States v. Wilson, 115 F.3d 1185, 1190
(4th Cir. 1997). Thus a defendant challenging the sufficiency of
the evidence faces a heavy burden. See United States v. Beidler,
110 F.3d 1064, 1067 (4th Cir. 1997). We conclude from the
materials before us on appeal that the evidence was sufficient to
support the jury conviction.
Fifth, Howard argues he is entitled to resentencing under
United States v. Booker, 125 S. Ct. 738 (2005). In Booker, the
Supreme Court held that Blakely v. Washington, 124 S. Ct. 2531
(2004), applies to the federal sentencing guidelines and that the
mandatory guidelines scheme that provided for sentence enhancements
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based on facts found by the court by a preponderance of the
evidence violated the Sixth Amendment. 125 S. Ct. at 746-48, 755-
56 (Stevens, J., opinion of the Court). The Court remedied the
constitutional violation by severing and excising two statutory
provisions, thus making the guidelines advisory. Id. at 756-57
(Breyer, J., opinion of the Court). Because Howard objected in the
district court pursuant to Blakely v. Washington, 124 S. Ct. 2531
(2004), and Apprendi v. New Jersey, 530 U.S. 466 (2000), to the
judge’s cocaine quantity calculations, we review Howard’s Booker
claim for harmless error. Under this standard, we may disregard an
error made at sentencing if we are certain that any such error “did
not affect the district court’s selection of the sentence imposed.”
Williams v. United States, 503 U.S. 193, 203 (1992).
The district court found the quantity of cocaine
attributable to Howard by a preponderance of the evidence and
imposed a sentence under the mandatory guidelines regime that
exceeded the sentence Howard would have received without the
judicial factfinding, in violation of Booker.3 However, following
our direction in United States v. Hammoud, 381 F.3d 316, 353 (4th
Cir. 2004), the district court announced “a sentence pursuant to 18
U.S.C.A. § 3553(a) (West 2000 & Supp. 2004), treating the
3
Just as we noted in United States v. Hughes, 401 F.3d 540
(4th Cir. 2005), "[w]e of course offer no criticism of the district
judge, who followed the law and procedure in effect at the time" of
Howard's sentencing. 401 F.3d at 545 n.4.
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guidelines as advisory only.” The alternative sentence announced
by the district court pursuant to Hammoud was identical to the
sentence imposed. Therefore, the Booker error was harmless.
Howard also argues that in light of Booker, his acquitted
conduct, distribution of ten ounces of cocaine on March 8, 2004,
cannot be used in sentencing. However, even if the ten ounces were
not attributed to Howard, his offense level would not change
because his relevant conduct would still exceed 3.5 kilograms. See
USSG § 2D1.1. Therefore, any possible error in this respect was
harmless.
Lastly, Howard argues that even if he is not entitled to
relief under Booker, he is entitled to resentencing because the
evidence does not support the district court’s determination of
drug quantity and his role in the offense. We review the district
court’s factual findings regarding drug quantity for clear error.
United States v. Randall, 171 F.3d 195, 210 (4th Cir. 1999). Under
the guidelines, drug quantities not specified in the counts of
conviction are considered relevant conduct when they are part of
the same course of conduct or common scheme or plan. U.S.
Sentencing Guidelines § 1B1.3(a)(2). “Same course of conduct” and
“common scheme or plan” are defined in Application Note 9 to
§ 1B1.3. Under Application Note 9(B), an offense may be part of
the same course of conduct as the offense of conviction if it is
part of “an ongoing series of offenses.” Factors to be considered
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in making this determination are “the degree of similarity of the
offenses and the time interval between the offenses.” Id. After
reviewing the record, we conclude the district court did not
clearly err in calculating the quantity of cocaine attributable to
Howard.
We also review “a district court determination regarding
the defendant's role in the offense” for clear error. United
States v. Palinkas, 938 F.2d 456, 460 (4th Cir. 1991). Howard
argues that he should have received a sentence reduction for being
a "minor" or "minimal" participant, as defined by USSG § 3B1.2.
Again after review of the records, we conclude that the district
court did not clearly err in its assessment of Howard’s role in
distributing a large amount of cocaine to various people for
further distribution.
Accordingly, we deny Howard’s motions to file a
supplemental brief, substitute counsel, and inspect the grand jury
hearing transcript. We affirm Howard’s conviction 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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