UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-5123
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOSEPH FREEMAN,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Deborah K. Chasanow, District Judge. (CR-
03-194)
Submitted: January 20, 2006 Decided: February 15, 2006
Before TRAXLER and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Joseph Freeman, Appellant Pro Se. Deborah A. Johnston, OFFICE OF THE
UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
PER CURIAM:
Joseph Carter Freeman was convicted at trial of one count
of conspiracy to distribute 5 kilograms or more of cocaine and 50
grams or more of cocaine base and 4 counts of possession with intent
to distribute 500 grams or more of cocaine. On appeal, Freeman
contends the following: (1) the sentence violates the Sixth
Amendment as per the rule announced in United States v. Booker, 543
U.S. 220 (2005); (2) the court erred in permitting evidence of co-
defendants’ confessions and hearsay statements; (3) counsel was
ineffective; (4) his protection against Double Jeopardy was violated;
and (5) the evidence was insufficient. Finding no error we affirm.
Freeman was given an adjusted offense level of 40 based
upon judicial fact finding with respect to drug quantity and firearm
possession. He was placed in criminal history category VI because he
is a career offender as defined by U.S. Sentencing Guidelines Manual
§ 4B1.1. Freeman’s sentencing range of imprisonment was 360 months
to life imprisonment. He was sentenced at the bottom of the
guideline’s range of imprisonment. We find any error harmless.
United States v. Mackins, 315 F.3d 399, 405 (4th Cir. 2003).
Freeman’s offense level would have been 37 had it been determined
based upon his career offender status. With an offense level of 37,
his guidelines range of imprisonment remained the same. Thus, the
sentence would have been the same regardless of whether the court
considered the drug quantity and firearm possession or not.
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Freeman also challenges certain testimony as violating his
right to confront witnesses against him because he claimed the
testimony was either co-defendants’ confessions implicating him or
improper hearsay. We have reviewed the evidence Freeman challenges
and find no error.
Freeman’s claim that his convictions for possession with
intent to distribute violate his protection against Double Jeopardy
because the convictions are lesser included offenses of the
conspiracy is without merit. Two crimes are to be treated as the
same offense unless each crime requires proof of an additional
element the other does not require. Blockburger v. United States,
284 U.S. 299, 304 (1932). The convictions for conspiracy and
possession require at least one element not found in the other type
of offense. Because they require different elements of proof, there
is no Double Jeopardy violation. See United States v. Cruz, 568 F.2d
781 (1st Cir. 1978).
Freeman also challenges the sufficiency of the evidence,
claiming there was no tangible evidence linking him to the charges
and the witnesses against him were not credible. A verdict must be
sustained if there is substantial evidence, taking the view most
favorable to the Government, to support it. 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
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F.3d 328, 333 (4th Cir. 2003) (quoting United States v. Burgos, 94
F.3d 849, 862-63 (4th Cir. 1996) (en banc)). In resolving issues of
substantial evidence, we do not weigh evidence or reassess the
factfinder’s assessment of witness credibility. United States v.
Saunders, 886 F.2d 56, 60 (4th Cir. 1989); United States v.
Arrington, 719 F.2d 701, 704 (4th Cir. 1983); see also United States
v. Sun, 278 F.3d 302, 313 (4th Cir. 2002).
To prove conspiracy under 21 U.S.C. § 841 (2000), the
Government must prove an agreement to violate a federal drug law, the
defendant’s knowledge of the conspiracy, and the defendant’s willing
participation. United States v. Strickland, 245 F.3d 368, 384-85
(4th Cir. 2001). A defendant may be convicted of conspiracy without
knowing all the conspiracy’s details, as long as he joins the
conspiracy understanding its unlawful nature and willfully joins in
the plan on at least one occasion. United States v. Burgos, 94 F.3d
849, 857 (4th Cir. 1996) (en banc). Once the existence of a
conspiracy is established, only a slight link between a defendant and
the conspiracy is needed to support a conviction. United States v.
Brooks, 957 F.2d 1138, 1147 (4th Cir. 1992). The knowledge and
participation elements of conspiracy may be shown by circumstantial
evidence. Strickland, 245 F.3d at 385.
Freeman’s challenges to the sufficiency of the evidence are
without merit. The Government did not have to support the
convictions with tangible evidence, such as seized narcotics. In
addition, we will not review the credibility of the witnesses.
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Clearly, there was more than sufficient evidence to establish Freeman
as part of a drug conspiracy dealing in cocaine and crack cocaine.
Furthermore, there was sufficient evidence to establish Freeman
possessed with intent to distribute at least 500 grams of cocaine on
four separate occasions as a result of evidence of his trips to
California.
Finally, Freeman claims his counsel was ineffective.
“Ineffective assistance claims are not cognizable on direct appeal
unless counsel’s ineffectiveness conclusively appears on the record.”
United States v. James, 337 F.3d 387, 391 (4th Cir. 2003). Instead,
to allow for adequate development of the record, a defendant
generally must bring his ineffective assistance claims in a motion
under 28 U.S.C. § 2255 (2000). United States v. King, 119 F.3d 290,
295 (4th Cir. 1997). Because it does not conclusively appear from
the record that counsel was ineffective, we will not review this
claim.
Accordingly, we affirm the 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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