UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-5103
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MARTEZ LAMONT SHERROD,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Malcolm J. Howard,
Senior District Judge. (CR-04-75)
Submitted: January 5, 2007 Decided: January 19, 2007
Before WILKINS, Chief Judge, and WILLIAMS and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Kelly L. Greene, STUBBS & PERDUE, P.A., New Bern, North Carolina,
for Appellant. Frank D. Whitney, United States Attorney, Anne M.
Hayes, Christine Witcover Dean, Assistant United States Attorneys,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Martez Lamont Sherrod appeals his convictions and sentence for
various drug offenses. He argues that the evidence was
insufficient to support his convictions and that his sentence was
unconstitutionally enhanced to a life sentence. For the reasons
that follow, we affirm.
I.
On December 5, 2002, Investigator Bruce Groccia of the
Greenville Police Department conducted a narcotics investigation at
the Jameson Inn in Greenville, North Carolina.1 Investigator
Groccia had received information that controlled substances were
being sold out of Room 102 of the Jameson Inn, so he went to the
hotel to conduct surveillance. Investigator Groccia observed
multiple individuals drive into the parking lot, park, walk into
Room 102, leave minutes later, and drive away. He also observed
occasions in which a vehicle drove into the parking lot and a man
came out of Room 102 and entered the vehicle; a short time later,
the man exited the vehicle and returned to Room 102, and the
vehicle drove away. Another man engaged in what looked like
counter-surveillance: he walked to different parts of the building
1
Because Sherrod challenges the sufficiency of the evidence
supporting his conviction, we view the facts in the light most
favorable to the Government. United States v. Pierce, 409 F.3d
228, 230 (4th Cir. 2005).
2
and looked around the corners. Based on his observations,
Investigator Groccia requested and obtained a search warrant for
Room 102.
Greenville Police Department Investigators Rose Edmonds and
Antonio Braxton, along with other officers, executed the warrant
and found ten to twelve individuals inside the hotel room. During
the search of the room, the officers took keys to a burgundy Honda
and $6,200 from Sherrod.
Outside the hotel, Investigator Groccia focused on the
vehicles associated with Room 102. When a police canine alerted to
the burgundy Honda, the officers used Sherrod’s key to enter the
Honda. The canine immediately alerted to the glove box, in which
the officers found crack cocaine. Inside the car, the officers
found registration and inspection paperwork listing Sherrod as the
car’s owner. The officers arrested Sherrod for trafficking
cocaine.
On March 26, 2003, Investigator Edmonds and Investigator
Braxton were driving northbound on Memorial Drive in Greenville
when they met Sherrod driving southbound. When Sherrod passed the
officers, he shielded his face with his left arm. Investigator
Edmonds recognized Sherrod and made a U-turn on Memorial Drive to
follow him. Sherrod attempted to elude the officers by
accelerating. In response, Investigator Edmonds activated her
car’s blue lights and siren. Sherrod turned onto another street,
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where the officers observed him throw something white out of the
car window. Sherrod then drove off the road into a grassy area
where Investigator Groccia, who had been working nearby at an off-
duty security job, helped the other officers stop Sherrod by
blocking his car. Investigator Braxton then walked back to the
area where the officers had observed Sherrod throw what appeared to
be a white bag. Two or three minutes later, he returned with the
white bag, which contained four plastic bags of cocaine. The
officers then arrested Sherrod for a second time.
On October 27, 2004, a federal grand jury indicted Sherrod for
conspiracy to distribute more than 50 grams of cocaine base (crack
cocaine) and more than 500 grams of cocaine (Count One), possession
with intent to distribute of more than 50 grams of crack cocaine on
December 6, 2002 (Count Two), and possession with intent to
distribute cocaine on March 26, 2003 (Count Three). Jeremiah Lee
Person and Vernon Lee Bryant were also charged in the conspiracy
count.
Nearly six months before trial, and in accordance with 21
U.S.C.A. § 851 (West 1999), the Government filed notice of its
intent to seek an enhanced penalty pursuant to 21 U.S.C.A.
§ 841(b)(1) (West 1999 & Supp. 2006) because Sherrod had been
convicted of two prior drug-related felonies.
Bryant and Person pleaded guilty to the conspiracy count and
testified against Sherrod. Bryant testified that he had known
4
Sherrod since the 1980s and that in 2003 he began purchasing crack
cocaine and powder cocaine from Sherrod. Bryant purchased seven
grams of crack cocaine daily for a couple of weeks. He then
purchased powder cocaine every other day for several weeks, first
in fourteen gram quantities and later in twenty-eight gram
quantities.
Person, who was present in the Jameson Inn room when the
police executed the search warrant, had known Sherrod since 1994
and described himself as a “good friend” of Sherrod. For a few
months in 1999, he bought crack cocaine and powder cocaine weekly;
he bought crack cocaine from Sherrod in 62 and 125 gram quantities
and powder cocaine in quantities between 125 grams to 500 grams.
In 2001, Person resumed buying powder cocaine from Sherrod,
purchasing 125 and 250 gram quantities weekly or biweekly. Person
estimated that he had purchased between three to four kilograms of
powder cocaine from Sherrod. Person testified that 236 grams of
crack cocaine that undercover law enforcement officers bought from
him came from Sherrod.
After the Government presented its case-in-chief, Sherrod
moved for a judgment of acquittal pursuant to Fed. R. Crim. P. 29.
The district court denied Sherrod’s motion from the bench. Sherrod
then introduced into evidence Investigator Groccia’s written notes
detailing a statement by Vernon Bryant that he did not buy drugs
from Sherrod.
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The jury found Sherrod guilty of conspiracy to possess with
intent to distribute more than 50 grams of crack cocaine and
between 500 grams to 5 kilograms of cocaine (Count 1), and guilty
of possession with intent to distribute more than 50 grams of crack
cocaine (Count 2). The jury also found Sherrod guilty of
possession with intent to distribute cocaine (Count 3). Pursuant
to 21 U.S.C.A. § 841(b)(1), the district court imposed statutorily
mandated sentences of life imprisonment for counts 1 and 2, to run
concurrently. The district court also imposed a concurrent
sentence of 360 months’ imprisonment for count 3.
II.
“We review de novo a district court’s denial of a motion, made
pursuant to Rule 29 of the Federal Rules of Criminal Procedure, for
judgment of acquittal.” United States v. Smith, 451 F.3d 209, 216
(4th Cir. 2006). In evaluating the sufficiency of the evidence,
we keep in mind that “a jury verdict ‘must be sustained if there is
substantial evidence, taking the view most favorable to the
Government, to support it.’” United States v. Burgos, 94 F.3d 849,
862 (4th Cir. 1996) (en banc) (quoting Glasser v. United States,
315 U.S. 60, 80 (1942)). In the context of a criminal trial,
“substantial evidence is evidence that a reasonable finder of fact
could accept as adequate and sufficient to support a conclusion of
a defendant’s guilt beyond a reasonable doubt.” Id. “In applying
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this standard of review, we must remain cognizant of the fact that
the jury, not the reviewing court, weighs the credibility of the
evidence and resolves any conflicts in the evidence presented, and
if the evidence supports different, reasonable interpretations, the
jury decides which interpretation to believe.” Id. (internal
quotation marks omitted).
Sherrod contends that several of the witnesses that testified
against him on the conspiracy charge were not credible because they
pleaded guilty to the conspiracy count and were facing life
sentences unless they obtained a sentencing reduction by
cooperating with the Government. We reject this contention because
“[w]e do not review the credibility of the witnesses when we
evaluate whether there existed sufficient evidence to support a
conviction.” United States v. Wilson, 115 F.3d 1185, 1190 (4th
Cir. 1997). The jury weighed the credibility of the witnesses that
testified against Sherrod and chose to believe them.
Sherrod also contends that the evidence was insufficient to
support his convictions for possession of drugs because (1) there
was evidence that the crack cocaine found in Sherrod’s Honda at the
Jameson Inn may have belonged to someone else, and (2) Investigator
Braxton was possibly biased against Sherrod, making his discovery
of the white bag containing cocaine unreliable.2 We reject this
2
Sherrod contends that Investigator Braxton was possibly
biased because there had been a complaint with the police
department alleging that he was involved in drug activities with
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argument because the jury makes credibility determinations and
decides which interpretation of the evidence to believe. Burgos,
94 F.3d at 862. We therefore affirm Sherrod’s convictions.
III.
Sherrod argues that § 851 is unconstitutional in the wake of
United States v. Booker, 543 U.S. 220 (2005). In United States v.
Robinson, 404 F.3d 850 (4th Cir. 2005), we stated that “Booker did
nothing to alter the rule that judges cannot depart below a
statutorily provided minimum sentence,” id. at 862, even when the
statutory minimum sentence is essentially a life sentence, see id.
(vacating a sentence of 384 months’ imprisonment because the
statutory minimum sentence was 2184 months’ imprisonment). This
rule applies here. Because Sherrod’s life sentence represented a
statutorily provided minimum sentence, the district court had no
discretion to depart below it. There is no Sixth Amendment problem
because the life sentence is based on facts found by the jury (drug
quantity) and the fact that Sherrod had two prior drug felony
convictions, a fact that need not be found by the jury. See
Booker, 543 U.S. at 244. Accordingly, we reject Sherrod’s Booker-
based challenge to § 851.
Sherrod. Prior to trial, Investigator Braxton was investigated and
cleared of these allegations.
8
Sherrod also argues that his sentence was unconstitutionally
enhanced to a life sentence because he refused to plead guilty.
(Appellant’s Br. at 26 (“[T]he only reason that [Sherrod] was
enhanced to a life sentence, and did not receive a substantially
less sentence within the 360-life range as was proscribed by the
United States Sentencing Guidelines . . . is because he refused to
plead guilty.”).) As the Government correctly notes, the facts do
not support Sherrod’s assertion. Section 851 requires the
Government to file notice of its intent to seek an enhanced penalty
for prior convictions “before trial, or before entry of a plea of
guilty.” 21 U.S.C.A. § 851(a)(1) (emphases added). The Government
complied with this requirement, filing its notice on January 24,
2005, which was well-before Sherrod pleaded not guilty on April 4,
2005. In fact, because the Government’s § 851 notice was filed
before he entered a plea, Sherrod remarked at his sentencing
hearing that this presented him with the choice to “plead to life
or [be] found guilty of life.” (J.A. at 419.) Thus, the
Government’s decision to seek an enhanced sentence was unrelated to
Sherrod’s choice of pleas.
IV.
For the foregoing reasons, we affirm Sherrod’s convictions and
sentence. We dispense with oral argument because the facts and
9
legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
AFFIRMED
10