UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4634
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TIMOTHY CLAY AREY,
Defendant - Appellant.
No. 06-4635
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TIMOTHY CLAY AREY,
Defendant - Appellant.
No. 06-4636
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RANDOLPH WILLIAM AREY,
Defendant - Appellant.
Appeals from the United States District Court for the Western
District of Virginia, at Harrisonburg. Samuel G. Wilson, District
Judge. (5:05-cr-00029-sgw; 5:05-cr-00062-sgw)
Submitted: February 19, 2007 Decided: March 8, 2007
Before WILKINSON, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Roy D. Bradley, Madison, Virginia, for Appellant Randolph William
Arey; Cheryl V. Higgins, ST. JOHN, BOWLING & LAWRENCE,
Charlottesville, Virginia for Appellant Timothy Clay Arey. John L.
Brownlee, United States Attorney, Jean B. Hudson, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Charlottesville, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Appellants Timothy Clay Arey and Randolph William Arey
(collectively, the “Defendants”) seek relief from their convictions
and sentences in the Western District of Virginia for drug
trafficking, conspiracy, and firearms violations. The Defendants
raise three primary contentions on appeal. First, they assert that
there was insufficient evidence to prove the prosecution’s case in
two respects: (a) that the Defendants conspired to possess
methamphetamine with intent to distribute, and (b) that they
possessed a firearm in furtherance of a drug trafficking crime.
Second, they assert that the trial court improperly instructed the
jury on the law of conspiracy. Third, they assert that the court
violated the Defendants’ Sixth Amendment rights by enhancing their
guidelines ranges on Count One of the Indictment based on facts not
found by the jury. As explained below, we affirm.
I.
On November 17, 2005, a federal grand jury returned a multi-
count Superseding Indictment against brothers Timothy and Randolph
Arey. Relevant to this appeal, the Indictment charged the
Defendants with conspiring to possess methamphetamine with intent
to distribute, in violation of 21 U.S.C. § 846 (Count One), charged
Timothy with three counts of possession of a firearm in furtherance
of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)
3
(Counts Three, Five, and Six), and charged Randolph with two counts
of possession of a firearm in furtherance of a drug trafficking
crime, in violation of 18 U.S.C. § 924(c)(1) (Counts Nine and Ten).
The Defendants pleaded not guilty and were tried by jury in
Harrisonburg, Virginia.
During their trial, the Government presented several witnesses
who testified to the Defendants’ drug trafficking activities.1 Law
enforcement officials testified that agents of the Bureau of
Alcohol, Tobacco and Firearms (“ATF”), along with officers from
Augusta County, executed a search warrant on October 7, 2004, at
Timothy’s home. The agents found Timothy with a loaded pistol in
his back pocket, a fanny pack containing methamphetamine, and over
$400 in cash. In the house, the agents found $7,000 in cash,
digital scales, more methamphetamine, twenty-seven firearms, a
quantity of ammunition, and a RF detector.2
Next, the Government presented testimony from the Arey
brothers’ main supplier of methamphetamine. Wayne Roadcap
testified that he “fronted” large quantities (pounds) of
methamphetamine to Timothy and Randolph from 1996 or 1997 until
1
The evidence presented at trial is summarized here in the
light most favorable to the Government. See United States v.
Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc).
2
A RF detector is a device that can determine whether a person
is wearing a wire transmitter.
4
2001.3 The Defendants would then sell the drugs and return cash to
Roadcap. Roadcap kept records, which were admitted in evidence,
showing the amounts of methamphetamine distributed to each brother,
the debts they owed, and when the debts were repaid. John Harold,
a drug dealer who had worked with Roadcap, testified that the Arey
brothers would individually come to Roadcap’s house to pick up
drugs. He testified that Roadcap confirmed to him that the Arey
brothers were selling drugs for Roadcap.
The Government also presented the testimony of several
cooperating witnesses who had bought methamphetamine from one or
both of the Arey brothers. Louis Goulet testified that he obtained
methamphetamine from Timothy, first by paying cash and later by
trading construction tools and two guns for drugs. When Timothy
told Goulet that he was “laying low,” he recommended that Goulet
obtain drugs from his brother Randolph, which Goulet did. Goulet
testified that he sold some methamphetamine for the Arey brothers,
and that on one occasion Randolph was carrying a pistol when Goulet
purchased drugs from him. Randolph explained to Goulet that he had
the firearm in case he got stopped by the police. Treena Louk
testified that she and her husband bought methamphetamine from the
Arey brothers and that she had seen Randolph carrying a firearm on
such occasions. Jose Monjes testified that he bought and sold
3
The Arey brothers continued to buy methamphetamine from
others after Roadcap was arrested in 2001.
5
methamphetamine for Timothy. David Taylor testified that he
purchased methamphetamine from Timothy. On one occasion, Taylor
saw Timothy with a revolver, which he said he kept nearby in case
the police showed up.
Kathy Arey, Randolph’s ex-wife, testified that Randolph
obtained methamphetamine from his brother and from Roadcap. On two
occasions, the Arey brothers came to her house to break up larger
quantities of methamphetamine for distribution. She also testified
that Randolph carried a firearm with him when Roadcap delivered
drugs to the house. Rhonda Arey, Timothy’s ex-wife, testified that
her husband sold drugs to several people. On one occasion, she saw
a device holding a handgun, mounted under the kitchen table,
pointed at the front door. Timothy told her the firearm was under
the table for use in the event that a business deal went wrong.4
After their arrests, both brothers admitted to ATF agents that they
had sold methamphetamine. Timothy also admitted that several
persons were selling drugs for him.
Both Defendants testified at trial, and both claimed that they
only sold small amounts of methamphetamine to support their
personal habits. The Defendants admitted to speaking with AFT
agents, but they denied being part of a conspiracy and denied
selling large quantities (pounds) of methamphetamine over a six-
4
Timothy also threatened to use this device, i.e. the handgun
mounted under the kitchen table, on his ex-wife.
6
year period. Both Defendants also admitted to collecting or
carrying firearms, but denied using them as part of a drug
trafficking operation.
Prior to the jury deliberations, the trial court instructed
the jury on the applicable legal principles. On appeal, the
Defendants challenge the instruction relating to the law of
conspiracy, but they failed to object to this instruction at trial.
The jury convicted both Defendants on all counts, and they were
sentenced on June 1, 2006. During their sentencing hearings, the
court, over the Defendants’ objections, first found that each Arey
brother was responsible for handling nine kilograms of
methamphetamine over a six-year period.5 Based on this finding,
each brother’s base offense level was enhanced from 32 to 36. The
court also found that both Defendants had perjured themselves at
trial and thus had obstructed justice. Because of this finding,
each Arey brother’s base offense level was enhanced an additional
two levels, for a total base offense level of 38. After
calculating the guidelines range and considering the 18 U.S.C.
§ 3553(a) factors, the court imposed a sentence totaling 535 months
for Randolph, which included a sentence of 235 months on Count One.
Timothy was sentenced to a total of 952 months in prison, which
included a sentence of 292 months on Count One.
5
The jury had found that the Count One conspiracy was
responsible for at least 500 grams of methamphetamine.
7
The Defendants have timely appealed, and we possess
jurisdiction pursuant to 28 U.S.C. § 1291.
II.
First, in evaluating whether a jury verdict is supported by
sufficient evidence, we must sustain the verdict, “‘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)). Second, we review for plain error an
issue raised first on appeal and not properly preserved in the
district court. See United States v. Olano, 507 U.S. 725, 736
(1993). Third, we review a sentence to determine whether it is
within the statutorily prescribed range and if it is reasonable.
See United States v. Moreland, 437 F.3d 424, 433 (4th Cir. 2006).
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III.
The Defendants raise three primary contentions on appeal.6
First, they assert that there was insufficient evidence for the
jury to conclude (a) that they conspired to possess methamphetamine
with intent to distribute, and (b) that they possessed firearms in
furtherance of a drug trafficking crime. Second, they assert that
the trial court improperly instructed the jury on the law of
conspiracy. Third, they assert that the court erred in enhancing
their sentences on Count One on the basis of facts not found by the
jury. We address these contentions in turn.
A.
1.
The Defendants contend that the verdict on Count One was not
supported by sufficient evidence to prove a drug conspiracy because
the Government did not establish that a business agreement existed
6
The Defendants make two other contentions on appeal that we
summarily reject based on controlling precedent. First, they
assert that they cannot be convicted for more than one violation of
18 U.S.C. § 924(c) arising out of the same predicate drug
trafficking crime. This assertion has previously been rejected by
us. See United States v. Camps, 32 F.3d 102, 107 (4th Cir. 1994)
(concluding that Government can obtain convictions for more than
one violation of § 924(c) that arise out of same predicate crime).
Second, the Defendants assert that Congress violated the
Constitution in its regulation of substances whose use did not
affect interstate commerce. This assertion has been heretofore
raised before and rejected by the Supreme Court. See Gonzales v.
Raich, 545 U.S. 1, 9 (2005) (concluding that it is valid exercise
of Congress’s power to regulate, through Controlled Substance Act,
local cultivation and use of marijuana).
9
between the brothers relating to the distribution of drugs.7 To
secure a conviction on a charge of conspiracy to possess
methamphetamine with intent to distribute, the Government must
first prove that an agreement existed among the alleged co-
conspirators to possess and distribute methamphetamine. See United
States v. Wilson, 135 F.3d 291, 306 (4th Cir. 1998). Because there
is sometimes a lack of direct evidence of an agreement among co-
conspirators, a conspiracy drug offense must often be proven by
circumstantial evidence. See United States v. Burgos, 94 F.3d 849,
857 (4th Cir. 1996) (en banc). We have recognized that, in such
situations, “[c]ircumstantial evidence . . . may consist of a
defendant’s relationship with other members of the conspiracy, the
length of this association, the defendant’s attitude and conduct,
and the nature of the conspiracy.” Id. at 858. (internal quotation
marks omitted).
Viewing the evidence in this case in the light most favorable
to the Government, there is more than ample evidence to establish
the Count One conspiracy charge. Indeed, the Government presented
overwhelming evidence that the Arey brothers worked together and
with others to purchase, package, and sell large quantities of
7
On appeal, the Defendants focus on whether there was
sufficient evidence to determine if a conspiracy to possess
methamphetamine with intent to distribute existed between the two
brothers only. They ignore the fact that there was evidence
establishing they were involved with other alleged co-conspirators,
as charged in Count One of the Indictment.
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methamphetamine. Both Roadcap and Harold testified that the Arey
brothers had purchased illicit drugs from Roadcap and sold those
drugs for him. Several other witnesses testified that they bought
illicit drugs from the Arey brothers and, on occasion, sold drugs
for them. Although there was no formal or written agreement
between the alleged co-conspirators, none was necessary, and the
Government presented the jury with more than enough evidence for it
to reasonably conclude that each Arey brother was involved in the
Count One conspiracy, with others and with each other, to buy and
sell methamphetamine.
2.
The Defendants next contend that the jury verdict was not
supported by sufficient evidence to prove that they possessed
firearms “in furtherance of” a drug trafficking crime, as alleged
in Counts Three, Five, Six, Nine, and Ten. To obtain convictions
on these charges, the Government was obliged to “present evidence
indicating that [a defendant’s] possession of a firearm furthered,
advanced, or helped forward a drug trafficking crime.” United
States v. Lomax, 293 F.3d 701, 705 (4th Cir. 2002). We have
recognized that there are numerous ways that firearms might further
drug trafficking crimes, including, inter alia, lessening the
chance someone might steal the drugs or the profits derived from
the drug transactions, and preventing drug transactions from
turning sour. Id.
11
Viewing the evidence in the light most favorable to the
Government, we must readily conclude that sufficient evidence was
presented at trial on the “in furtherance of” a drug trafficking
crime element of these five counts. The Government presented
several witnesses who testified that Randolph and Timothy often
carried firearms with them when they were dealing drugs. These
witnesses testified that each Arey brother explained that they
carried weapons for use in the event their drug deals went wrong,
or in case the police showed up. Given this evidence, a reasonable
jury was entitled to conclude that the Arey brothers used firearms
in furtherance of their drug trafficking activities.
B.
The Defendants next contend that the court did not properly
instruct the jurors on the conspiracy charge alleged in Count One.
Specifically, the Defendants assert that the court did not properly
advise the jury that the Defendants must have reached an agreement
between themselves or with other alleged co-conspirators in order
to be convicted of conspiracy to possess methamphetamine with the
intent to distribute. Because the Defendants failed to object to
the instruction being complained of, we review this contention for
plain error. In order to show plain error, “we must be able to (1)
identify an error, (2) which is plain, (3) which affects
substantial rights, and (4) which seriously affects the fairness,
12
integrity or public reputation of judicial proceedings.” United
States v. Ryan-Webster, 353 F.3d 353, 363 (4th Cir. 2003) (internal
quotation marks omitted).
When a defendant asserts on appeal that a jury instruction was
improper and unduly prejudicial, we must examine “whether, taken as
a whole, the instruction fairly states the controlling law.”
United States v. Cobb, 905 F.2d 784, 789 (4th Cir. 1990). Here,
the court, after correctly outlining the elements of an unlawful
conspiracy to the jury, went into a detailed explanation on the
controlling legal principles with regard to the charge in Count
One.8 Because the court fairly advised the jury on the controlling
8
In relevant part, the court advised the jury on the following
legal principles with respect to Count One:
The agreement or understanding need not be an express or
formal agreement or be in writing or cover all of the
details of how it is to be carried out. Nor is it
necessary that the members have directly stated between
themselves the details or purposes of the scheme.
. . . But a person may join in an agreement or
understanding, as required by this element, without
knowing all the details of the agreement or understanding
and without knowing who all the members are.
. . . .
In determining whether the alleged conspiracy
existed, you may consider the actions and statements of
all the alleged participants. The agreement may be
inferred from the circumstances and conduct of all the
alleged participants.
J.A. 612-14. (Citations to “J.A. ” refer to the Joint Appendix
filed by the parties in this appeal.)
13
legal principles on the conspiracy issue, there was no error in
this regard, and thus our plain error analysis need proceed no
further.
C.
Lastly, the Defendants contend that their sentences were
imposed in violation of the Sixth Amendment, because the court made
findings of fact that increased their guidelines ranges on Count
One beyond what they would have been on the basis of the jury
verdict alone. As a result of the Supreme Court’s decision in
United States v. Booker, 543 U.S. 220 (2005), a sentencing court
cannot engage in judicial factfinding that results in a sentence
that exceeds the statutory maximum authorized by the jury verdict
alone. However, it is not a Sixth Amendment violation for a
sentencing court to make the findings of fact necessary to properly
calculate a defendant’s advisory guidelines range. See United
States v. Moreland, 437 F.3d 424, 432 (4th Cir. 2006).
In this case, the sentencing court properly enhanced the
Defendants’ guidelines ranges on Count One based on its findings
that they had committed perjury at trial, and that they were each
responsible for handling nine kilograms of methamphetamine over a
six-year period. Timothy was then sentenced to 292 months in
prison on Count One while Randolph was sentenced to 240 months.
Count One — which charged the Arey brothers with being involved in
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a conspiracy to distribute 500 grams or more of methamphetamine —
carries a statutory sentencing range of ten years to life. See 21
U.S.C. § 841(b)(1)(A). Because the Defendants’ sentences were each
below the statutory maximum of life in prison, no Sixth Amendment
violations occurred here. As a result, this contention of the
Defendants must also be rejected.
IV.
Pursuant to the foregoing, we reject each of the Defendants’
appellate contentions and affirm their convictions and sentences in
the district court.9
AFFIRMED
9
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before us and
argument would not aid in the decisional process.
15