UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4119
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JERRY LEE CODY,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L. Voorhees,
District Judge. (CR-02-33-V)
Submitted: August 31, 2005 Decided: September 26, 2005
Before WILKINSON, LUTTIG, and GREGORY, Circuit Judges.
Affirmed in part; vacated and remanded in part by unpublished per
curiam opinion.
M. Gordon Widenhouse, Jr., RUDOLF, WIDENHOUSE & FIALKO, Chapel
Hill, North Carolina, for Appellant. Gretchen C. F. Shappert,
United States Attorney, Amy E. Ray, 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Unpublished opinions are not binding precedent in this circuit.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:
Jerry Lee Cody appeals from his conviction and 210-month
sentence imposed for conspiracy to possess with intent to
distribute methamphetamine, in violation of 21 U.S.C. § 846 (2000).
Cody raises three issues on appeal: (1) whether the district court
erred in instructing the jury that to determine possession of
methamphetamine, it could consider evidence of close physical
proximity to methamphetamine; (2) whether the district court
plainly erred in failing to instruct the jury on multiple
conspiracies; and (3) whether his sentence is erroneous in light of
United States v. Booker, 125 S. Ct. 738 (2005). We find no error
in the conviction and affirm it, however we vacate and remand the
sentence for further proceedings.
This court reviews jury instructions for abuse of
discretion. United States v. Ruhe, 191 F.3d 376, 385 (4th Cir.
1999). The district court’s instructions will be upheld “provided
the instructions, taken as a whole, adequately state the
controlling law.” Teague v. Bakker, 35 F.3d 978, 985 (4th Cir.
1994). The challenged jury instruction involved possession of
methamphetamine. The Government must prove beyond a reasonable
doubt that the defendant (1) knowingly (2) possessed the controlled
substance (3) with the intent to distribute it. United States v.
Burgos, 94 F.3d 849, 873 (4th Cir. 1996). Possession may be actual
or constructive. United States v. Rusher, 966 F.2d 868, 878 (4th
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Cir. 1992). “A person has constructive possession of a narcotic if
he knows of its presence and has the power to exercise dominion and
control over it.” United States v. Schocket, 753 F.2d 336, 340
(4th Cir. 1985). Possession need not be exclusive but may be joint
and “may be established by direct or circumstantial evidence.” Id.
This court has held that “where other circumstantial
evidence . . . is sufficiently probative, proximity to contraband
coupled with inferred knowledge of its presence will support a
finding of guilt on such charges.” United States v. Laughman, 618
F.2d 1067, 1077 (4th Cir. 1980). Further, having ownership,
dominion, or control over the premises or vehicle where contraband
is concealed is constructive possession. United States v.
Armstrong, 187 F.3d 392, 396 (4th Cir. 1999).
The relevant instruction by the district court was:
If you find beyond a reasonable doubt that
methamphetamine was found in close proximity to the
defendant that would be a circumstance from which,
together with other circumstances, you may infer that the
defendant was aware of the presence of it and had the
power and intent to control its disposition or use.
The district followed by instructing that physical proximity was
not enough to establish possession:
[T]he defendant’s physical proximity, if any, to the
methamphetamine, does not by itself permit an inference
that the defendant was aware of its presence or had the
power or intent to control its disposition or use. Such
an inference may be drawn only from this and any other
circumstances which are shown from the evidence beyond a
reasonable doubt.
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We conclude that the challenged instruction was
consistent with the law in this Circuit on constructive possession
and that the court’s further instruction made it clear that
proximity to the contraband alone could not establish constructive
possession. We therefore hold that the district court did not
abuse its discretion in overruling the objection to the
instruction.
Next, Cody contends that the district court erred by not
instructing the jury on multiple conspiracies. Because Cody did
not request a jury instruction regarding multiple conspiracies,
review of the failure to give a jury instruction is for plain
error. United States v. Richerson, 833 F.2d 1147, 1155-56 (5th
Cir. 1987). Under the plain error standard, Cody must show:
(1) there was error; (2) the error was plain; and (3) the error
affected substantial rights. United States v. Olano, 507 U.S. 725,
732 (1993). If the three elements are met, the court may exercise
its discretion to notice the error only if the error “seriously
affect[s] the fairness, integrity, or public reputation of judicial
proceedings.” Olano, 507 U.S. at 732 (internal quotation marks
omitted).
Even if there was plain error, Cody must show that the
error affected his substantial rights. The burden is on Cody to
demonstrate that the plain error “actually affected the outcome of
the proceedings.” United States v. Hastings, 134 F.3d 235, 240
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(4th Cir. 1998). Thus, he must show that the jury convicted him of
the conspiracy count because of the plain error. United States v.
Godwin, 272 F.3d 659, 680 (4th Cir. 2001). “[I]n order for the
defense to establish that the jury misinstruction altered the
outcome of the trial, it had to show that the proper instruction,
on the same evidence, would have resulted in acquittal, or at the
very least a hung jury.” United States v. Nicolaou, 180 F.3d 565,
570 (4th Cir. 1999).
This court has held that “[a] multiple conspiracy
instruction is not required unless the proof at trial demonstrates
that appellants were involved only in separate conspiracies
unrelated to the overall conspiracy charged in the indictment.”
United States v. Squillacote, 221 F.3d 542, 574 (4th Cir. 2000)
(internal quotation marks omitted). Cody argues that because
several of the Government’s witnesses did not mention or rarely
mentioned Cody’s co-conspirators charged in the indictment, that he
could not have been part of the conspiracy charged. However, each
co-conspirator need not know each other in order for all of them to
be engaged in a single conspiracy. See United States v. Crockett,
813 F.2d 1310, 1317 (4th Cir. 1987); see also United States v.
Gray, 47 F.3d 1359, 1368 (4th Cir. 1995). Rather, the touchstone
analysis is whether there is an “overlap of key actors, methods,
and goals.” United States v. Strickland, 245 F.3d 368, 385 (4th
Cir. 2001) (internal quotation marks and citation omitted).
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Here, Cody admitted to knowing most of the people
frequently mentioned in the conspiracy. He was connected to
several co-conspirators by the testimony from his buyers and
supplier. Thus, he cannot prove that he was in a separate
conspiracy unrelated to the overall conspiracy charged in the
indictment, see Squillacote, 221 F.3d at 574, and we conclude that
Cody has not carried his burden to demonstrate plain error in the
district court’s failure to give a multiple conspiracies
instruction.
Finally, Cody argues that the district court enhanced his
sentence based upon facts not submitted to the jury or proven
beyond a reasonable doubt. Because Cody did not raise this issue
at sentencing, his sentence is reviewed for plain error. United
States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005) (citing Olano,
507 U.S. at 731-32). The Supreme Court held in Booker, 125 S. Ct.
at 746, 750, that the mandatory manner in which the Sentencing
Guidelines required courts to impose sentencing enhancements based
on facts found by the court by a preponderance of the evidence
violated the Sixth Amendment.
Because Cody received a higher sentence than would have
been permissible based only on the jury’s findings, we vacate and
remand his sentence for resentencing under an advisory guidelines
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system.* See Hughes, 401 F.3d at 547-49, 555-56 (finding that
Hughes had satisfied all three prongs of the plain error test set
forth in Olano, 507 U.S. at 732, when he was sentenced to a
sentence substantially longer than the sentence permitted based
purely on the facts found by a jury, and that the court should
exercise its discretion to recognize the error).
Although the guidelines are no longer mandatory, Booker
makes clear that a sentencing court must still “consult [the]
Guidelines and take them into account when sentencing.” 125 S. Ct.
at 767. Sentencing courts should first determine the appropriate
sentencing range under the Guidelines, making all factual findings
appropriate for that determination. See Hughes, 401 F.3d at 546.
The court should consider the Guideline range, along with the other
factors described in 18 U.S.C. § 3553(a) (2000), and then impose a
sentence. Id. If that sentence falls outside the Guideline range,
the court should explain its reasons for departure as required by
18 U.S.C.A. § 3553(c)(2) (West Supp. 2004). Id. The sentence must
be “within the statutorily prescribed range and . . . reasonable.”
Id. at 546-47.
*
Just as we noted in Hughes, 401 F.3d at 545 n.4, “[w]e of
course offer no criticism of the district judge, who followed the
law and procedure in effect at the time” of Appellant’s sentencing.
See generally Johnson v. United States, 520 U.S. 461, 468 (1997)
(stating that an error is “plain” if “the law at the time of trial
was settled and clearly contrary to the law at the time of
appeal”).
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We therefore affirm Cody’s conviction and vacate his
sentence and remand for further proceedings consistent with Booker
and Hughes. 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 IN PART;
VACATED AND REMANDED IN PART
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