UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-5174
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DAVID OWENS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Judge. (CR-05-264)
Submitted: October 20, 2006 Decided: November 16, 2006
Before NIEMEYER, WILLIAMS, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Acting Federal Public Defender, Mary
Elizabeth Maguire, Assistant Federal Public Defender, Sapna
Mirchandani, Research and Writing Attorney, Richmond, Virginia, for
Appellant. Chuck Rosenberg, United States Attorney, Roderick C.
Young, Assistant United States Attorney, Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
David Owens was convicted of conspiracy to possess with
intent to distribute 100 grams or more of heroin, in violation of
21 U.S.C. § 846 (2000). He was sentenced to 300 months in prison.
Owens now appeals, raising two issues. We affirm.
I
Stephanie Hargrove, David Owens’ girlfriend, testified
that he was a heroin dealer in North Carolina who obtained his
heroin supply in Connecticut. She said that he had dealt heroin
during the three years of their relationship. At Owens’ direction,
she rented a car in Wilmington, North Carolina, and drove to
Connecticut, where she met Owens. Owens asked her to take a bag
back to North Carolina with her. She suspected that the bag
contained heroin, and declined his request. While she was away
from the car, Owens packed the car. It was not until she was
driving back to North Carolina and received a cell phone call from
Owens inquiring about a bag that she realized Owens likely had
placed a bag containing heroin in the car’s trunk.
Hargrove was stopped for a traffic infraction in Henrico
County, Virginia. She consented to a search of the car. During
the search, Officer William Hueston discovered a bag containing
what appeared to be heroin. Hueston informed Hargrove what he had
found and told her that he suspected she was transporting the
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heroin for someone else. Hueston told Hargrove that he would like
her to cooperate with authorities so the dealer could be
apprehended. Hargrove agreed.
Officers devised a ruse in which Hargrove would tell
Owens when he called that she had been in a traffic accident and
was staying in a hotel in Virginia. Owens eventually arrived at
the hotel, where he was arrested.
It was stipulated that the 1000 bags of heroin found in
the trunk weighed 193 grams. An officer testified that, based on
the packaging and amount of heroin, he believed the heroin was
intended for distribution rather than personal use.
II
Owens first claims that the district court erred when it
denied his Fed. R. Crim. P. 29 motion for judgment of acquittal.
In particular, Owens attempts to cast doubt on Hargrove’s
credibility.
We review the district court’s decision to deny a Rule 29
motion de novo. United States v. Uzenski, 434 F.3d 690, 700 (4th
Cir. 2006). Where, as here, the motion was based on a claim of
insufficient evidence, “[t]he verdict of a jury 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 that evidence which a
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‘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. Cardwell, 433 F.3d 378, 390 (4th Cir.
2005) (quoting United States v. Burgos, 94 F.3d 849, 862 (4th Cir.
1996) (en banc)), cert. denied, 126 S. Ct. 1669 (2006). This court
reviews both direct and circumstantial evidence and permits “the
government the benefit of all reasonable inferences from the facts
proven to those sought to be established.” United States v.
Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982). “[W]e do not review
the credibility of witnesses and assume the jury resolved all
contradictions in the testimony in favor of the government.”
United States v. Sun, 278 F.3d 302, 313 (4th Cir. 2002).
“To prove a conspiracy under 21 U.S.C. § 846, the
government must prove (1) an agreement between two or more persons
to engage in conduct that violates a federal drug law, (2) the
defendant’s knowledge of the conspiracy, and (3) the defendant’s
knowing and voluntary participation in the conspiracy.” United
States v. Strickland, 245 F.3d 368, 384-85 (4th Cir. 2001); see
United States v. Burgos, 94 F.3d at 857. Here, there was ample
evidence to support Owens’ conviction. Viewed in the light most
favorable to the Government, the evidence established that Owens
was the leader of a criminal enterprise that violated the federal
drug laws, and the enterprise involved at least one other person,
Hargrove.
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III
Owens was sentenced as a career offender, and he never
disputed that he satisfied the criteria for this designation. He
contended, however, that his status as a career offender
dramatically overstated his criminal past and resulted in a
sentence far more severe than was necessary.
At sentencing, the district court considered Owens’
argument but rejected it. After describing Owens’ criminal past,
the court concluded that Owens’ record showed him to be a “classic
career offender.” The court addressed the sentencing factors set
forth at 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2006), focusing
on the nature of the instant offense and Owens’ characteristics,
including his criminal record. The court noted especially the
amount of heroin involved in the offense and Owens’ having used
another person to facilitate the crime. The court concluded that
a sentence within the properly calculated advisory guideline range
of 262-327 months was appropriate and sentenced Owens to 300 months
in prison.
On appeal, Owens again claims that his designation as a
career offender significantly overstates his criminal history and
that his sentence is far greater than necessary to serve the
purposes of sentencing. We review a sentence imposed after United
States v. Booker, 543 U.S. 220 (2005), to determine whether the
sentence is “within the statutorily prescribed range . . . and
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. . . reasonable.” United States v. Hughes, 401 F.3d 540, 546-47
(4th Cir. 2005).1 “[A] sentence within the proper advisory
Guidelines range is presumptively reasonable.” United States v.
Johnson, 445 F.3d 339, 341 (4th Cir. 2006).2 “[A] defendant can
only rebut the presumption by demonstrating that the sentence is
unreasonable when measured against the § 3553(a) factors.” United
States v. Montes-Pineda, 445 F.3d 375, 379 (4th Cir. 2006)
(internal quotation marks omitted), petition for cert. filed,
U.S.L.W. (U.S. July 21, 2006) (No. 06-5439).
Here, Owens failed to rebut the presumption. At
sentencing, the district court considered and rejected his
contentions that his status as a career offender overstated his
criminal past and that a lower sentence would serve the purposes of
sentencing. The court concluded that Owens was a “classic career
offender.” Further, the court took the § 3553(a) factors into
account, focusing on the nature of the instant crime. We conclude
that Owens’ sentence is reasonable “[b]ecause the district court
properly calculated the advisory Guidelines range and adequately
considered the § 3553(a) factors.” See United States v. Johnson,
445 F.3d at 346.
1
Owens’ sentence is within the statutorily prescribed range of
five to forty years. See 21 U.S.C. § 841(b)(1)(B) (2000).
2
Owens does not attack the calculation of the advisory
guideline range. Nor would such an attack be successful, as our
review of the record establishes that the range was correctly
calculated.
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IV
We accordingly affirm. 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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