Filed: December 15, 2006
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4499(L)
(CR-04-127)
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
NATHAN J. HUGHES,
Defendant - Appellant.
O R D E R
The court amends its opinion filed July 20, 2006, as follows:
On page 3, first paragraph, line 11 -- “forty months’” is
corrected to read “forty-one months’.”
For the Court - By Direction
/s/ Patricia S. Connor
Clerk
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4499
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
NATHAN J. HUGHES,
Defendant - Appellant.
No. 05-4501
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
LOIS KING,
Defendant - Appellant.
Appeals from the United States District Court for the Southern
District of West Virginia, at Parkersburg. Joseph Robert Goodwin,
District Judge. (CR-04-127)
Submitted: May 31, 2006 Decided: July 20, 2006
Before MICHAEL and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Jacqueline A. Hallinan, HALLINAN LAW OFFICES, P.L.L.C., Charleston,
West Virginia; Herbert L. Hively, II, Hurricane, West Virginia, for
Appellants. Charles T. Miller, Acting United States Attorney, R.
Gregory McVey, Assistant United States Attorney, Huntington, West
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
Nathan Joseph Hughes appeals his conviction by a jury and
sentence on charges of conspiracy to distribute 500 grams or more
of cocaine, in violation of 21 U.S.C. § 846 (Count One), and
distribution of 1.1 grams of cocaine, in violation of 21 U.S.C.
§ 841(a)(1) (Count Seven) (Appeal No. 05-4499). Lois King appeals
her jury conviction and sentence on a charge of money laundering,
in violation of 18 U.S.C. § 856 (Count Sixteen) (Appeal No. 05-
4501). The district court sentenced Hughes to 140 months’
imprisonment, a three-year supervised release term, and ordered
forfeiture of $200, as well as payment of a $200 statutory
assessment. The district court sentenced King to forty-one months’
imprisonment, three years of supervised release, and ordered
forfeiture of $50,000 (jointly and severally with Kirt R. King,
Appellant King’s son and co-Defendant), and payment of a $100
statutory assessment.
The charges arose in 2001 when the Drug Enforcement
Administration and the Parkersburg Narcotics Violent Crimes Task
Force (“Task Force”) began an undercover investigation into cocaine
trafficking in Wood County, West Virginia, targeting various
individuals in the Parkersburg area including Appellant Hughes, as
well as Kirt King and others.* The evidence at trial revealed that
*
The Government introduced evidence at trial that Kirt King
and Mario Mason joined forces to purchase cocaine from Columbus,
Ohio, process it, and then resell it in the Parkersburg, West
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the Task Force used Michelle Bailey, an exotic dancer, to make a
controlled purchase of cocaine from Hughes. The Government
presented evidence that Bailey entered a vehicle where Hughes was
sitting and, after engaging in sexual banter, Hughes sold her 1.1
grams of cocaine for $200. The conversation was recorded, and,
over the objections of, and following the denial of a suppression
motion by, Hughes, the district court admitted the entire tape of
the controlled buy, which included repeated discussion between
Bailey and Hughes of sexual matters. Hughes renewed his objection
to the playing of the unredacted tape for the jury, again arguing
that its prejudicial effect outweighed its probative value.
Bailey testified at trial that she was working as a
confidential informant for the Task Force on March 10, 2004, when
she made a controlled purchase of cocaine from Hughes. She
attested that the purchase occurred at night in a car at a gas
station parking lot in Parkersburg. She testified that during the
transaction, Hughes tried to “talk her into doing something,”
specifically perform oral sex on him, before selling her the
cocaine. The audiotape played for the jury was replete with
demands by Hughes that Bailey perform oral sex on him and show him
her breasts. Hughes told Bailey that unless she performed oral sex
on him, he would not “hook her up.”
Virginia area. Testimony as to the amounts of cocaine purchased,
processed, and redistributed by the conspiracy members was
introduced by a number of witnesses.
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Task Force Agent Doug Sturm corroborated Bailey’s
testimony as to the controlled buy from Hughes. Laboratory
evidence confirmed that the purchase involved 1.1 grams of cocaine.
Sherman King testified that on several occasions he saw
Hughes at Kirt King’s residence, and saw Hughes give Kirt King
money and later leave with a bag. Mario Mason testified that
Hughes spent time at Kirt King’s house and that he personally had
seen Hughes sell cocaine. Curtis Richard testified that he also
saw Hughes at Kirt King’s house on several occasions, and that
Hughes and King would go off together into a different room.
Stephen Gandee, a co-conspirator, testified that he saw Hughes at
Kirt King’s residence, that he had distributed cocaine with Hughes
at a bar in Parkersburg, and that he had overheard a conversation
at the Carter County Correctional Center between Hughes and Kirt
King about Hughes still owing King $1400.
With respect to Lois King, the Government alleged that
they found 116.5 grams of cocaine in Kirt King’s residence, worth
$26,000, and that Lois King, Kirt King’s mother, owned the
residence. Mario Mason testified that Kirt King would give large
amounts of cash to Appellant King, and that he and Kirt King used
the residence to store and prepare for resale cocaine they had
purchased from sources in Columbus, Ohio. He further testified
that Appellant King was in the residence during the time he and
Kirt King used it to process cocaine. Mason attested that
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Appellant King was involved in taking the drug money she received
from her son and putting it in assets, such as houses and cars.
The Government presented additional evidence that Appellant King
acquired and paid the land contract on one residence with a lump
sum payment of $14,580 in cash, and that another property was
purchased for $21,000, deeded, and being paid for by Appellant
King, despite her lack of financial resources (as reported in her
income tax records).
On appeal, Hughes claims that the district court erred in
denying his Fed. R. Crim. P. 29 motion for acquittal of Count One
of the superseding indictment on the ground that the evidence was
insufficient to support the charge or the jury’s verdict. The
basis for his challenge is that the witnesses’ credibility was
suspect. Because we do not review witness credibility in
determining the sufficiency of the evidence, see e.g., United
States v. Wilson, 115 F.3d 1185, 1190 (4th Cir. 1997), we find
Hughes’ assertion to be unavailing.
Hughes’ final challenge on appeal is that the district
court erred in allowing, over his objection, the introduction of
the tape recording of the controlled buy that implicated Hughes
engaging in sexual banter with the Government’s confidential
informant. Hughes alleges that the recording’s prejudicial effect
outweighed its probative value. We find this argument to be
meritless. See generally United States v. Love, 134 F.3d 595, 603
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(4th Cir. 1998) (noting that under our “broadly deferential
standard” of review, we will not upset a district court’s Rule 403
decision “except under the most extraordinary of circumstances”)
(citation and internal punctuation omitted).
King’s first claim on appeal is that her sentence is
unreasonable. After the Supreme Court’s decision in United
States v. Booker, 543 U.S. 220 (2005), a sentencing court is no
longer bound by the range prescribed by the sentencing guidelines.
See United States v. Hughes, 401 F.3d 540, 546 (4th Cir. 2005).
However, in determining a sentence post-Booker, sentencing courts
are still required to calculate and consider the guideline range
prescribed thereby as well as the factors set forth in 18 U.S.C.A.
§ 3553(a) (West 2000 & Supp. 2005). Id. We will affirm a post-
Booker sentence if it is both reasonable and within the statutorily
prescribed range. Hughes, 401 F.3d at 546-47.
As King’s forty-one month prison sentence was within the
properly calculated sentencing guideline range of 41 to 51 months’
imprisonment, it is presumptively reasonable. United States v.
Green, 436 F.3d 449, 457 (4th Cir.), cert. denied, 126 S. Ct. 2309
(2006). King has not rebutted that presumption as the district
court appropriately treated the guidelines as advisory, calculated
and considered the guideline range, and weighed the relevant §
3553(a) factors.
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King’s final challenge on appeal is that her retained
trial counsel rendered ineffective assistance. She asserts that
her attorney’s continuing disregard for the judge’s instructions
not to thank him regarding his trial rulings, his disregard for the
judge’s instruction not to inquire into details of pending charges
relative to a Government witness, and his use of a pejorative
relative to an Assistant United States Attorney in the presence of
a juror prejudiced her case. She further claims that her attorney
was admonished by the district court five times for statements he
made during his opening statement, that he failed to present a
defense on her behalf, that his questions on direct examination
were met with repeated objections by other attorneys, and that his
cross-examination of Government witnesses lacked all “rhythm or
craft.”
King’s claim of ineffective assistance of counsel must be
brought in a collateral proceeding under 28 U.S.C. § 2255 (2000),
unless it conclusively appears from the face of the record that her
counsel was ineffective. United States v. DeFusco, 949 F.2d 114,
120-21 (4th Cir. 1991). Because the record does not conclusively
establish ineffective assistance of counsel, we decline to consider
this claim on direct appeal.
Accordingly, we affirm the convictions and sentences of
Hughes and King. We dispense with oral argument because the facts
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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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