United States v. Suthar

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 06-4508

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

NEAL SUTHAR,

Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Lacy H. Thornburg,
District Judge. (1:05-cr-00204-ALL)

Submitted: January 26, 2007 Decided: March 9, 2007

Before WILKINSON and TRAXLER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

Andrew B. Banzhoff, DEVEREUX & BANZHOFF, PLLC, Asheville, North
Carolina, for Appellant. Gretchen C. F. Shappert, United States
Attorney, Thomas Cullen, Assistant United States Attorney,
Charlotte, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Neal Suthar appeals his jury conviction of one count of

distribution of chemicals used to manufacture methamphetamine in

violation of 18 U.S.C. § 843(a)(7) (2000), and his resulting

sentence of twelve months and one day in prison. Suthar claims the

district court: (I) erred in denying his Fed. R. Civ. P. 29 motion

based on insufficient evidence; (ii) erred in admitting the

testimony of the Government’s expert witness; (iii) incorrectly

calculated his guidelines range pursuant to U. S. Sentencing

Guidelines Manual ("USSG") § 2D1.12 (2005); and (iv) violated the

Sixth Amendment in sentencing him. Finding no error, we affirm.

Suthar first claims the district court erred in denying

his motion for judgment of acquittal because the evidence was

insufficient to support his conviction. This court reviews the

denial of a Rule 29 motion de novo. United States v. Alerre, 430

F.3d 681, 693 (4th Cir. 2005). When, 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). This court "ha[s] defined

‘substantial evidence' as 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." Alerre, 430 F.3d

at 693 (internal citation omitted).

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 This court "must consider circumstantial as well as

direct evidence, and allow 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). This court "may not weigh the evidence or review the

credibility of the witnesses." United States v. Wilson, 118 F.3d

228, 234 (4th Cir. 1997). If evidence "supports different,

reasonable interpretations, the jury decides which interpretation

to believe." United States v. Murphy, 35 F.3d 143, 148 (4th Cir.

1994).

We conclude the evidence was sufficient to establish

Suthar distributed chemicals used to manufacture methamphetamine.

To convict Suthar under § 843(a)(7), the Government was required to

prove Suthar: (1) knowingly or intentionally distributed a

chemical, product, or material which may be used to manufacture a

controlled substance or listed chemical and (2) acted knowing,

intending, or having reasonable cause to believe that the chemical

would be used to manufacture a controlled substance or listed

chemical. See 21 U.S.C. § 843(a)(7).

DEA agents testified Suthar was informed that matches,

hydrogen peroxide, and Sudafed could be used in the methamphetamine

manufacturing process and to be on the lookout for suspicious

activity of individuals seeking to purchase those items. The

Government's witnesses also testified Suthar admitted he was aware

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of the methamphetamine problem and agreed to report any suspicious

behavior. Nevertheless, Suthar sold hydrogen peroxide and large

quantities of matches to Waters, and agreed to try to secure

Sudafed for him, as well. Most compelling, the Government produced

audio and visual recordings of Suthar during his interactions with

Waters in which Waters informed Suthar that he needed the product

to make "batches" and needed the product "bad."

Although Suthar testified he had no knowledge the matches

or peroxide could be used to manufacture methamphetamine or that

Waters intended to use the products to manufacture methamphetamine,

the jury's disregard of this testimony was a credibility

determination that should not be disturbed on appeal. See Wilson,

118 F.3d at 234. Accordingly, we conclude the district court did

not err in denying Suthar's Rule 29 motion.

Suthar next claims the district court erred by overruling

his objection to the Government expert witness's testimony

regarding the amount of red phosphorus contained in a matchbook

striker plate because the testimony contained inadmissible hearsay.

Suthar also claims the district court erred in refusing to strike

the expert's testimony from the record because he was not placed on

notice of the witness's testimony pursuant to Fed. R. Crim. P. 16.

Suthar's arguments are meritless.

We review the district court’s admission or exclusion of

evidence for abuse of discretion. See United States v. Young, 248

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F.3d 260, 266 (4th Cir. 2001). We also review decisions regarding

compliance with Rule 16 for abuse of discretion. Id. at 269. This

court will find abuse of discretion only if the district court's

evidentiary ruling was arbitrary or irrational. See United States

v. Achiekwelu, 112 F.3d 747, 753 (4th Cir. 1997).

Suthar claims the district court should have sustained

his general objection to a question by the Government regarding the

expert contacting the match manufacturer because the expert’s

answer contained inadmissible hearsay. The question to which

Suthar's counsel objected, however, was not a question seeking to

elicit inadmissible hearsay. Although the witness continued to

testify regarding the information provided him by the match

manufacturer, Suthar's counsel did not timely object to his

response containing the inadmissible hearsay or timely move to have

the testimony stricken from the record. Accordingly, we conclude

Suthar has not preserved this issue for appeal. See United States

v. Perkins, 470 F.3d 150, 157 n.10 (4th Cir. 2006) ("[T]he

objecting party [must] object with that reasonable degree of

specificity which would have adequately apprised the trial court of

the true basis for his objection.") (citing to United States v.

Parodi, 703 F.2d 768, 783 (4th Cir. 1983)).

We also conclude the district court did not err in

refusing to strike the Government's expert witness testimony

because the Government failed to disclose his testimony pursuant to

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Fed. R. Crim. P. 16. Rule 16(a)(1)(G) requires the government

furnish, upon the defendant's request, a written summary of any

expert testimony that the government intends to use under Fed. R.

Evid. 702, 703, or 705 during its case-in-chief at trial. The

summary must describe the witness's opinions, the bases and reasons

for those opinions, and the witness's qualifications.

The decision whether to impose a sanction for a violation

of Rule 16(a)(1)(G) rests within the district court's discretion.

See Fed. R. Crim. P. 16(d)(2) ("If . . . a party has failed to

comply with this rule, the court may order such party to permit the

discovery or inspection, grant a continuance, or prohibit the party

from introducing evidence not disclosed . . . ."); United States v.

Hastings, 126 F.3d 310, 317 (4th Cir. 1997) ("In determining a

suitable and effective sanction, a court must weigh the reasons for

the government's delay and whether it acted intentionally or in bad

faith; the degree of prejudice, if any, suffered by the defendant;

and whether any less severe sanction will remedy the prejudice and

the wrongdoing of the government.").

The sanction of exclusion of testimony, however, "is

almost never imposed" absent a constitutional violation or

statutory authority for the exclusion. United States v. Charley,

189 F.3d 1251, 1262 (10th Cir. 1999). Even when there has been an

abuse of discretion under Rule 16, reversal is inappropriate unless

the defendant establishes prejudice by demonstrating that it is

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likely that had the government complied with the discovery rule

(not had the evidence been suppressed), the verdict would have been

different. See United States v. Chastain, 198 F.3d 1338, 1348

(11th Cir. 1999).

Assuming without deciding the Government's failure to

disclose a summary of its expert testimony violated the

requirements of Rule 16, we conclude Suthar was not prejudiced by

this failure. Suthar had an opportunity to cross-examine the

Government's expert witness. During this cross-examination,

defense counsel elicited that the expert witness did not conduct a

test on the matchbooks to determine if they actually contained red

phosphorus. In any event, the amount of red phosphorus contained

in the striker plates of the matchbooks sold by Suthar was not an

issue at trial. The Government only had to prove Suthar knowingly

or intentionally distributed the matches, which could be used to

manufacture methamphetamine, and that he acted knowing, intending,

or having reasonable cause to believe the matches would be used to

manufacture methamphetamine. See 21 U.S.C. § 843(a)(7).

The Government produced ample evidence Suthar had reason

to believe the matches he sold could and would be used to

manufacture methamphetamine, especially given the quantity of

matches purchased, the other items inquired about by Waters and

Waters' comments regarding making a "batch." Most important,

Suthar not only sold an unusually large quantity of matches to

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Waters, but he also sold him hydrogen peroxide, another ingredient

used to manufacture methamphetamine. Because there was substantial

evidence Suthar sold product that could be used in the manufacture

of methamphetamine, and since the Government's expert witness's

testimony was limited and somewhat irrelevant, we conclude that,

even had the Government provided a summary of the expert witness's

testimony prior to trial, the verdict would not have been

different.

Suthar also raises several challenges to his sentence.

Suthar first claims his sentence was unreasonable because in

calculating his guidelines range, the district court followed the

recommendation of the presentence investigation report (“PSR”) and

applied the greater offense level under USSG § 2D1.12. Suthar

contends that because the jury never indicated it found him guilty

of knowing or believing the matches he sold to Waters would be used

to manufacture a controlled substance, the lesser base offense

level of nine provided in § 2D1.12 should have been applied. See

USSG § 2D1.12(a)(2) (providing for a base offense level of nine if

defendant only had "reasonable cause to believe" the product he

sold would be used to manufacture a controlled substance).

Accordingly, Suthar claims the district court's decision to follow

the PSR violates United States v. Booker, 543 U.S. 220 (2005).

Because Suthar objected to the PSR and objected at

sentencing to the district court's application of the greater base

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offense level, our review is de novo. See United States v.

Mackins, 315 F.3d 399, 405 (4th Cir. 2003). We conclude the

district court did not err in sentencing Suthar under the greater

offense level provided by § 2D1.12.

After Booker, this court will affirm a sentence imposed

by the district court as long as it is within the statutorily

prescribed range and reasonable. See United States v. Hughes, 401

F.3d 540, 547 (4th Cir. 2005). A sentence may be unreasonable for

both substantive and procedural reasons. See United States v.

Moreland, 437 F.3d 424, 433 (4th Cir.), cert. denied, 126 S. Ct.

2054 (2006). If a "sentence is based on an error in construing or

applying the Guidelines, it will be found unreasonable and

vacated." United States v. Green, 436 F.3d 449, 457 (4th Cir.),

cert. denied, 126 S. Ct. 2309 (2006). If a sentence is the product

of a proper guidelines application and consideration of the factors

set forth in 18 U.S.C. § 3553(a), the sentence is entitled to a

presumption of reasonableness. See Moreland, 437 F.3d at 432.

In considering whether a sentence is unreasonable, this

court reviews the district court's factual findings for clear error

and its legal conclusions de novo. See United States v. Hampton,

441 F.3d 284, 287 (4th Cir. 2006). A sentencing court treating the

guidelines as advisory continues to make factual findings

concerning sentencing factors by a preponderance of the evidence.

See United States v. Morris, 429 F.3d 65, 72 (4th Cir. 2005), cert.

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denied, 127 S. Ct. 121 (2006). We conclude Suthar's sentence is

reasonable.

Although the district court did not explicitly state that

it found Suthar actually knew the matches he sold would be used to

manufacture a controlled substance, because the district court

adopted the PSR calculations as correct, the district court

inherently adopted the findings in the PSR that applied the greater

base offense level under § 2D1.12. We conclude there was

sufficient evidence from which the district court could infer the

Government established Suthar possessed actual knowledge that the

matches he sold would be used to manufacture a controlled

substance. Finally, we note the district court, after considering

the § 3553(a) factors, deviated below the guidelines range provided

in the PSR and sentenced Suthar to twelve months and one day, even

though the PSR’s guidelines range was fifteen to twenty-one months.

Based on the foregoing, we conclude the district court did not err

in applying the greater base offense level provided for in the PSR

and that Suthar's sentence is reasonable.

Suthar next argues this court, by virtue of its decision

in Green, 436 F.3d at 457, has adopted a "presumptive guidelines

system" of sentencing that operates as a de facto mandatory system

in violation of Booker and the Sixth Amendment since the court has

"continually" overruled sentences outside the guidelines range.

Suthar also argues this de facto mandatory sentencing system

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violated his Sixth Amendment right to a trial by jury because he

was sentenced based upon facts contained in the PSR and found by

the district court by a preponderance of the evidence, rather than

facts found by a jury beyond a reasonable doubt. Suthar's

arguments are meritless.

First, we decline Suthar's invitation to revisit this

court's holding in Green on the grounds it has created a de facto

mandatory sentencing scheme. See United States v. Guglielmi, 819

F.2d 451, 457 (4th Cir. 1987) (holding that only an en banc court,

not a subsequent panel, has authority to overturn a previous

panel's published decision).

We also conclude Suthar's right to a jury trial was not

violated because the district court made factual findings at

sentencing. A district court has authority "to exercise broad

discretion in imposing a sentence within a statutory range. . . .

[f]or when a trial judge exercises his discretion to select a

specific sentence within a defined range, the defendant has no

right to a jury determination of the facts that the judge deems

relevant." Booker, 543 U.S. at 233; see also Green, 436 F.3d at

455 (holding that a district court "must make factual findings as

appropriate or necessary to carry out its sentencing function").

Because we find the district court did not err in adopting the

PSR's application of a greater base offense level for the purpose

of calculating Suthar's guidelines range, and especially since,

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after considering the § 3553(a) factors, sentenced Suthar below the

guidelines range, we conclude Suthar was not sentenced in violation

of Booker or the Sixth Amendment.

Accordingly, we affirm Suthar’s conviction 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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