UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4982
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JEFFREY ALEXANDER SANDERS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (CR-04-338-BO)
Submitted: June 16, 2006 Decided: July 10, 2006
Before WILKINSON, WILLIAMS, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
M. Gordon Widenhouse, Jr., RUDOLF, WIDENHOUSE & FIALKO, Chapel
Hill, North Carolina, for Appellant. Frank D. Whitney, United
States Attorney, Anne M. Hayes, Christine Witcover Dean, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Jeffrey Alexander Sanders appeals from his convictions
for conspiracy to distribute and to possess with intent to
distribute crack cocaine and for three counts of distribution of
crack cocaine. He also appeals his life sentence. We affirm.
I.
Sanders first challenges the admission of a police
officer’s testimony that a paid informant had successfully served
as an informant and testifying witness on prior occasions. Sanders
alleges that such testimony was improper extrinsic evidence offered
to bolster the informant’s credibility in violation of Fed. R.
Evid. 608(b). Because Sanders did not object, this issue is
reviewed for plain error. To demonstrate plain error, an appellant
must establish that an error occurred, that it was plain, and that
it affected substantial rights. United States v. Olano, 507 U.S.
725, 732 (1993). If an appellant meets these requirements, this
court’s “discretion is appropriately exercised only when failure to
do so would result in a miscarriage of justice, such as when the
defendant is actually innocent or the error seriously affects the
fairness, integrity or public reputation of judicial proceedings.”
United States v. Hughes, 401 F.3d 540, 555 (4th Cir. 2005).
The Government appears to agree that admission of the
evidence was improper. However, the Government contends that there
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was no plain error because (1) the evidence would have been
admissible as rebuttal evidence and (2) the evidence against
Sanders was overwhelming. We agree.
Rule 608(b) bars the admission of extrinsic evidence to
prove “[s]pecific instances of the conduct of a witness, for the
purpose of . . . supporting the witness’ character for
truthfulness.” However, Rule 608(b) does not apply when evidence
is offered for the purpose of establishing or rebutting a witness’s
bias. United States v. Sumlin, 271 F.3d 274, 282-83 (D.C. Cir.
2001); see also Fed. R. Evid. 608, Advisory Committee Notes, 2003
Amendments (providing that extrinsic evidence may be offered for
impeachment purposes). Here, Sanders cross-examined the informant,
eliciting evidence regarding his monetary interest in conducting
controlled buys, his hatred of drug dealers, and the fact that he
targeted his girlfriend’s ex-boyfriend. Thus, the evidence of the
informant’s prior cooperation would likely have been admissible to
rebut the theory that the informant fabricated evidence against
Sanders in order to make money and protect his girlfriend. Thus,
Sanders’ substantial rights were not affected.
In any event, even if the evidence was inadmissible in
rebuttal, there was no miscarriage of justice requiring the
exercise of our discretion. The evidence against Sanders was
overwhelming. Even disregarding the informant’s testimony, there
was sufficient evidence for the jury to find Sanders guilty on each
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count. Contrary to Sanders’ suggestion that there would have been
insufficient evidence to convict him of two substantive counts,
numerous witnesses testified about one or both of those buys. In
addition, Frank Sessions’ testimony regarding Sanders’ admissions
further corroborated the other evidence at trial. Thus, even if
there was plain error in this case, we decline to exercise our
discretion to notice it.
II.
Sanders next asserts that the district court erred in
admitting audiotapes and permitting review of the transcripts when
the tape recordings were inaudible. Because Sanders did not object
below, this claim is also reviewed for plain error. Again, we find
that there was no miscarriage of justice in this case justifying
the exercise of our discretion.
First, it is not clear that the recordings were
inaudible. Although the district court stated it could not hear
the first one, at least some members of the jury could. The record
shows that the second tape was clearer. Second, Sanders stipulated
to the accuracy of the transcripts, so even misplaced reliance on
the transcripts by the jury would not have prejudiced him.
Finally, there was ample corroborating evidence regarding the July
2003 controlled buys, which the tape recordings documented. Thus,
it is not likely that suppression of the tape recordings would have
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altered the outcome of the trial. Accordingly, any error did not
affect Sanders’ substantial rights and did not result in a
miscarriage of justice.
III.
Sanders next contends that the district court erred in
adopting the findings in the presentence report (“PSR”) regarding
drug quantity. However, the defendant bears the burden of
establishing that the information relied on by the district court
from the PSR is incorrect. United States v. Love, 134 F.3d 595,
606 (4th Cir. 1998). Because Sanders did not object, the district
court was not required to hold a hearing or to make specific
findings of fact before adopting the recommendations in the PSR.
Id. In any event, the testimony at trial fully supported the
amounts adopted. Accordingly, this claim is without merit.
IV.
Sanders argues that the district court’s finding of drug
quantity violated United States v. Booker, 543 U.S. 220 (2005),
because it was made by the judge based on a preponderance of the
evidence, rather than upon facts admitted by Sanders or found by a
jury beyond a reasonable doubt. Sanders was sentenced after Booker
and under the advisory guidelines system. The district court did
not err in making the relevant factual findings by a preponderance
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of the evidence. See United States v. Morris, 429 F.3d 65, 71-72
(4th Cir. 2005). The court was not obligated post-Booker to
determine enhancements by a higher standard. See Hughes, 401 F.3d
at 546 (consistent with Booker, “a district court shall first
calculate (after making the appropriate findings of fact) the range
prescribed by the guidelines”); see also United States v. Revels,
__ F.3d __, 2006 WL 1134148, *2 n.2 (4th Cir. May 1, 2006) (noting
that, when defendant fails to object to PSR, the Government has met
its burden of proving the undisputed facts by a preponderance of
the evidence, even after Booker). Thus, there was no error.
V.
Sanders asserts that his attorney was ineffective for
failing to object to the bolstering, the admission of the
audiotape, the Government’s motion in limine to prevent
cross-examination on stale convictions, and the drug quantity in
the PSR. An ineffective assistance of counsel claim is generally
not cognizable on direct appeal, but should instead be asserted in
a post-conviction petition under 28 U.S.C. § 2255 (2000). See
United States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999).
However, we have recognized an exception to the general rule when
“it ‘conclusively appears’ from the record that defense counsel did
not provide effective representation.” Id.
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Sanders asserts that there was no tactical basis for
failing to interpose these objections. However, such a conclusory
statement fails to rebut the strong presumption that the actions
taken by counsel were sound trial strategy. See Strickland v.
Washington, 466 U.S. 668, 690 (1984). Sanders’ counsel may have
declined to object so as to not call attention to the issue or
because the objection would have been fruitless. Thus, the record
does not conclusively establish that Sanders’ counsel’s conduct was
unreasonable.
Moreover, as discussed previously, there was a plethora
of evidence against Sanders. He was witnessed and tape-recorded
conducting two drug deals; he was arrested in the midst of another
drug deal; he admitted in prison to selling drugs; and the Sessions
brothers (whose testimony Sanders does not challenge) testified
that, for over a year and a half, Sanders bought substantial
quantities of crack cocaine on a very regular basis. Therefore,
even if counsel erred by failing to object in district court, the
record does not conclusively show prejudice. Thus, Sanders’ claims
are not cognizable on direct appeal.
VI.
Accordingly, we affirm Sanders’ convictions and sentence.
We dispense with oral argument because the facts and legal
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contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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