United States v. Morton

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 06-4311

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

JAMISON J. MORTON,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, District
Judge. (3:05-cr-409)

Submitted: June 15, 2007 Decided: July 9, 2007

Before WILKINSON, TRAXLER, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Robert L. Flax, Richmond, Virginia, for Appellant. Chuck Rosenberg,
United States Attorney, Stephen W. Miller, Assistant United States
Attorney, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Following a jury trial, Jamison Morton was convicted of

one count of possession with intent to distribute five grams or

more of crack cocaine, in violation of 21 U.S.C. § 841 (2000)

(“Count One”), one count of possession of five grams or more of

crack cocaine, in violation of 21 U.S.C. § 844 (2000) (“Count

Two”), one count of possession of a firearm in furtherance of a

drug trafficking offense, in violation of 18 U.S.C. § 924(c) (2000)

(“Count Three”), and one count of being a felon in possession of a

firearm, in violation of 18 U.S.C. § 922(g)(1) (2000) (“Count

Four”). Morton was sentenced to 211 months’ imprisonment. For the

reasons set forth below, we affirm Morton’s convictions and

sentence.

Taken in the light most favorable to the Government,

Evans v. United States, 504 U.S. 255, 257 (1992), the evidence

adduced at trial established the following facts. In June 2005,

City of Richmond Police Officers Gilbert, Lindsey, Taylor, and

Martin were surveilling a certain part of the Church Hill

neighborhood. During the course of this surveillance, Gilbert

observed an individual later identified as Morton engage in several

interactions that were, in Gilbert’s opinion, consistent with

street-level drug transactions. However, Gilbert did not believe

he had a sufficient basis to intervene. Morton eventually left the

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area, driving a silver Cadillac. Gilbert directed the other

officers to follow the Cadillac and to stop it if possible.

While in pursuit, Lindsey and Taylor noticed that one of

the Cadillac’s brake lights was not functioning. Lindsey contacted

police dispatch via radio, informing dispatch that they planned to

stop the vehicle. The officers activated their blue lights;

instead of yielding, however, Morton fled. The officers continued

to pursue Morton. Morton eventually entered an alley, at which

point he threw a white plastic bag out of the vehicle’s window.

The bag remained airborne for only a few seconds before falling

straight to the ground. Still in contact with dispatch, Lindsey

reported the bag being thrown from the vehicle but, as they were

still in pursuit, the officers did not stop to retrieve it. After

Morton was apprehended, Lindsey returned to the alley where he

found the bag, which contained a loaded .9 mm pistol wrapped in a

T-shirt and 115 individually wrapped pieces of crack cocaine.1

At trial, Officers Gilbert, Lindsey, and Taylor all

testified to their observations on the night in question. The

Government also called Special Agent Robert Scanlon of the DEA as

an expert witness on drug trafficking and its connection to

firearms. Agent Scanlon explained that possessing 115 individually

wrapped pieces of crack cocaine was more consistent with an intent

1
The parties stipulated that the total weight of the seized
crack was 11.33 grams.

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to distribute than with personal use, and that firearms are

frequently used to facilitate drug transactions.

At the close of the Government’s case-in-chief, Morton

moved, pursuant to Fed. R. Civ. P. 29, for judgment of acquittal;

the district court denied the motion. Testifying in his own

defense, Morton denied having thrown anything out of the car window

and explained that Gilbert had previously harassed Morton.

After it received the case, the jury sent the court two

requests: one, to review Agent Scanlon’s testimony; and two, for

clarification as to whether the Government had to establish Morton

brandished the firearm in order to prove Morton’s guilt on Count

Three. Without objection, the court denied the jury’s request to

review Scanlon’s testimony. With regard to the second request, in

addition to directing the jury to its prior instruction, the court

also expressly noted that the Government did not have to prove

Morton actually brandished the firearm. Morton’s attorney objected

to this supplemental information. The court also rejected one

juror’s request to present questions orally, noting that any

questions should be submitted in writing to allow the court time to

consult with the attorneys before responding. Shortly thereafter,

the jury returned a guilty verdict on all four counts.

Prior to trial, the Government offered Morton a plea deal

that involved dropping Count Four and foregoing enhanced

sentencing. Before the deadline for accepting the plea expired,

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Morton contacted a new attorney, David Lassiter. Lassiter

contacted the Assistant United States Attorney prosecuting Morton

and asked to review the Government’s case. Government counsel

provided Lassiter a copy of Morton’s file. Lassiter requested an

extension of the period within which to accept the plea offer, but

Government counsel declined this request as the deadline had

already been extended once. Government counsel informed Lassiter

that if Morton did not accept the plea offer by noon on December 5,

the Government would file a notice of its intent to seek an

enhanced sentence pursuant to 21 U.S.C. § 851 (2000). Upon receipt

of Morton’s rejection of the plea offer, the Government filed § 851

notice of its intent to seek an enhanced sentence.

Several days later, Government counsel learned that the

City of Richmond Police Department had an audio tape of the

discourse between Lindsey and the dispatch officer. After

receiving a copy of the tape, Lassiter requested that the

Government withdraw the § 851 notice and reopen its plea offer,

thus giving Morton an opportunity to reconsider his decision to

plead not guilty in light of this new evidence. The Government

declined Lassiter’s request.

Lassiter filed a motion to compel the Government to

withdraw the § 851 notice and to preclude the use of the tape

during the Government’s case-in-chief. Lassiter argued that the

Government had agreed to provide the defense all of the evidence it

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had against Morton in order to facilitate Morton making an informed

decision regarding whether to plead guilty; thus, because the

audiotape surfaced after Morton rejected the plea offer, Lassiter

maintained that the Government should be required to withdraw the

§ 851 notice and to permit Morton another opportunity to accept the

plea offer. The court denied the motions. Morton proceeded to

trial and was found guilty on all counts.

Prior to sentencing, the probation officer prepared a

pre-sentence report (“PSR”) in which he recommended a total offense

level of thirty-one and criminal history category IV.2 The

probation officer determined that Morton had nine criminal history

points, seven of which related to past convictions. At sentencing,

the district court adopted the Guidelines application set forth in

the PSR without modification and, after considering the 18 U.S.C.A.

§ 3553(a) (West 2000 & Supp. 2006) factors, sentenced Morton to 211

months’ imprisonment.3 Morton timely noted his appeal.

Morton’s appellate brief presents six issues. Counsel

avers that only three of these issues have merit: (1) whether

there was sufficient evidence to support Morton’s convictions for

possession with intent to distribute and use of a firearm in

2
Morton does not ascribe any error to the calculation of his
total offense level on appeal.
3
Morton’s sentence consisted of 151 months on Counts One and
Two, and 120 months on Count Four, to be served concurrently, and
sixty months on Count Three, to run consecutively.

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furtherance of a drug trafficking offense; (2) whether Morton’s

criminal history was correctly calculated; and (3) whether Morton’s

sentence was reasonable and whether this court should afford a

within-Guidelines range sentence a presumption of reasonableness.

The other three issues, raised pursuant to Anders v. California,

386 U.S. 738 (1967), are that: (1) the pursuit and stop of

Morton’s vehicle violated his Fourth Amendment rights; (2) the

court abused its discretion in responding to the jury’s questions;

and (3) the court erred in denying Morton’s motion to compel

withdrawal of the § 851 notice.

I. Sufficiency of the Evidence

This court reviews sufficiency of the evidence challenges

by determining whether, viewing the evidence in the light most

favorable to the Government, any rational trier of fact could find

the essential elements of the crime beyond a reasonable doubt.

Glasser v. United States, 315 U.S. 60, 80 (1942); United States v.

Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982). The court reviews

both direct and circumstantial evidence, and permits the

“[G]overnment the benefit of all reasonable inferences from the

facts proven to those sought to be established.” Tresvant, 677

F.2d at 1021. Furthermore, “[t]he Supreme Court has admonished

that we not examine evidence in a piecemeal fashion, but consider

it in cumulative context.” United States v. Burgos, 94 F.3d 849,

863 (4th Cir. 1996) (citations omitted).

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 In evaluating the sufficiency of the evidence, this court

does not “weigh the evidence or review the credibility of the

witnesses.” United States v. Wilson, 118 F.3d 228, 234 (4th Cir.

1997). Where the evidence supports differing reasonable

interpretations, the jury decides which interpretation to credit.

Id. (quotations omitted). This court will uphold the jury’s

verdict if there is substantial evidence to support it, and will

reverse only in those rare cases “where the prosecution’s failure

is clear.” United States v. Beidler, 110 F.3d 1064, 1067 (4th Cir.

1997) (quotations omitted).

To establish Morton’s guilt on Count One — possession

with intent to distribute — the Government must prove beyond a

reasonable doubt that Morton: (1) knowingly; (2) possessed the

controlled substance; (3) with the intent to distribute it.

Burgos, 94 F.3d at 873. Possession may be actual or constructive,

United States v. Rusher, 966 F.2d 868, 878 (4th Cir. 1992), and may

be established by circumstantial evidence. United States v.

Wright, 991 F.2d 1182, 1187 (4th Cir. 1993). Intent to distribute

may be inferred if the amount of drugs found exceeds an amount

normally associated with personal consumption. Id.

There was ample evidence to support the jury’s verdict.

Gilbert testified that, after observing Morton engage in several

exchanges consistent with hand-to-hand, street-level drug sales,

Morton drove away in a Cadillac. Morton was the sole occupant of

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the vehicle. While in pursuit of the Cadillac, Lindsey and Taylor

observed the driver, later identified as Morton, throw a white

plastic bag from the vehicle into an alley. Lindsey recovered the

plastic bag in which he found 115 individually wrapped crack rocks

and a firearm. DEA Agent Scanlon testified that the manner in

which the crack was packaged and the total weight was more

consistent with an intent to distribute than with personal use.

Although the jury heard Morton’s testimony in which he denied

throwing the bag from his car window, it is plain that the jury

credited the officers’ version of events over Morton’s. This

credibility determination was well within the jury’s province and

we will not disturb it on appeal.

With regard to Count Three, to establish a violation of

18 U.S.C. § 924(c), use of a firearm in furtherance of a drug

trafficking offense, the Government must prove that “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).

Whether the firearm served such a purpose is ultimately a factual

question, and the factfinder is free to consider the numerous ways

in which a firearm might further or advance drug trafficking. Id.

“Ultimately, the test is whether a reasonable jury could, on the

evidence presented at trial, find beyond a reasonable doubt that

possession of the firearm facilitated a drug trafficking crime

. . .; ‘in furtherance’ means that the gun afforded some advantage

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(actual or potential, real or contingent) relevant to the

vicissitudes of drug trafficking.” United States v. Lewter, 402

F.3d 319, 322 (2d Cir. 2005). The court has recognized that drug

deals frequently involve guns. Lomax, 293 F.3d at 706.

Again, our review of the transcript reveals sufficient

evidence on which the jury could convict Morton. Lindsey testified

that he recovered the loaded firearm from the bag he observed

Morton throw from his vehicle; 115 pieces individually wrapped

crack cocaine were found in this same bag. As Morton was the sole

occupant in the vehicle, it is plain that he actually possessed the

firearm. The fact that Morton had the firearm in close proximity

to the crack, which in turn was clearly packaged for sale,

indicates that the firearm provided Morton, at minimum, a potential

advantage. Lewter, 402 F.3d at 322. For these reasons, we affirm

the jury’s guilty verdicts on both Counts One and Three.

II. Criminal History Calculation

Morton challenges the attribution of criminal history

points based on three prior convictions: driving while under a

suspended license, possession of an alcoholic beverage by a minor,

and driving while under a suspended license, second or subsequent

offense. According to Morton, none of these convictions are

countable under the Guidelines, thus yielding only four criminal

history points and a category III criminal history.

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 Morton did not raise any objection to the calculation of

his criminal history in the district court. Accordingly, our

review is for plain error. United States v. Hughes, 401 F.3d 540,

547 (4th Cir. 2005); United States v. Martinez, 277 F.3d 517, 524

(4th Cir. 2002). Under the plain error standard, Morton must show:

(1) there was error; (2) the error was plain; and (3) the error

affected his substantial rights. United States v. Olano, 507 U.S.

725, 732-34 (1993). When these conditions are satisfied, this

court may exercise its discretion to notice the error only if it

“seriously affect[s] the fairness, integrity or public reputation

of judicial proceedings.” Id. at 736 (internal quotation marks

omitted). The burden of showing plain error is on the defendant.

United States v. Strickland, 245 F.3d 368, 379-80 (4th Cir. 2001).

Morton has failed to demonstrate any error, let alone

plain error, in calculating his criminal history. Morton argues

that he should not have received one criminal history point for his

conviction for possession of an alcoholic beverage by a minor

because “[c]onvictions for public intoxication are never counted”

under United States Sentencing Guidelines § 4A1.2(c)(2) (2005)

(“USSG”). However, the underlying offense was possession of an

alcoholic beverage by a minor. As this is plainly distinct from a

conviction for public intoxication, this particular Guideline

affords Morton no relief.

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 Relying on USSG § 4A1.2(c)(1) (2005), Morton next asserts

that he should not have received a criminal history point for

either his conviction for driving while under a suspended license,

or his conviction for driving while under a suspended license —

second or subsequent offense, because he did not serve more than

thirty days on either conviction.

Section 4A1.2(c)(1) provides that certain misdemeanor

offenses will be counted in computing a defendant’s criminal

history if “the sentence was a term of probation of at least one

year or a term of imprisonment of at least thirty days.” The

Guideline lists “driving without a license or with a revoked or

suspended license” as one such countable offense. USSG

§ 4A1.2(c)(1). The language of the Guideline clearly demonstrates

that, in determining whether the conviction should be counted, it

is not the amount of time the defendant actually serves that

controls; instead, the sentencing court must look to the term of

imprisonment imposed. Id.; see also USSG § 4A1.2, cmt. n.2 (2005)

(“[C]riminal history points are based on the sentence pronounced,

not the length of time actually served.”).

Here, for the initial conviction for driving while under

a suspended license, Morton was sentenced to thirty days’

imprisonment, suspended conditioned upon good behavior; for the

conviction for driving while under a suspended license, second or

subsequent offense, Morton received a ninety-day term of

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imprisonment, eighty days of which were suspended conditioned upon

three years of good behavior. With regard to the first conviction,

the suspension of the sentence in its entirety does not alter the

fact that Morton was actually sentenced to thirty days’

imprisonment. USSG § 4A1.2(a)(3) (2005). Accordingly, the

district court did not err in awarding one criminal history point

for this conviction.

With regard to the second or subsequent suspended license

conviction, Morton served ten days on the ninety day sentence he

received. This is plainly sufficient to support the imposition of

one criminal history point. USSG § 4A1.2, cmt. n.2. The district

court committed no error in adopting the PSR’s calculation of

Morton’s criminal history.

III. Reasonableness of Morton’s Sentence

Morton next asserts that his criminal history category

overstates his criminal history. Because Morton did not raise this

issue below, we review only for plain error. Hughes, 401 F.3d at

547.

While Morton ascribes error to his criminal history

category, he also concedes that the probation officer properly

calculated Morton’s criminal history. We have reviewed the

calculation of Morton’s criminal history and find no plain error.

Morton’s criminal record establishes Morton’s continued refusal to

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abide by the law, and that is accurately reflected in his criminal

history category.

Morton next asserts a cursory challenge to this court’s

approach to resolving appeals from post-Booker4 sentences.

Particularly, Morton maintains that this court should not afford

sentences within the properly calculated Guidelines range a

presumption of reasonableness. We reject this argument as

foreclosed by circuit precedent. See, e.g., United States v.

Montes-Pineda, 445 F.3d 375, 379 (4th Cir.), petition for cert.

filed, __ U.S.L.W. __ (U.S. July 21, 2006) (No. 06-5439); United

States v. Johnson, 445 F.3d 339, 341-42 (4th Cir. 2006); United

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

S. Ct. 2054 (2006); United States v. Green, 436 F.3d 449, 457 (4th

Cir.), cert. denied, 126 S. Ct. 2309 (2006).

IV. Validity of Pursuit and Stop

The first issue raised pursuant to Anders is Morton’s

contention that the officers’ pursuit and eventual seizure of

Morton violated his Fourth Amendment rights. Morton maintains

that, although the officers averred that they initiated the traffic

stop because of the Cadillac’s brake light, this was merely

pretextual as the pursuit and the stop were truly motivated by

their suspicions that Morton had engaged in drug trafficking.

4
United States v. Booker, 543 U.S. 220 (2005).

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 Counsel correctly asserts that this argument has no

merit. Whatever subjective intent the officers may have had at the

beginning of their pursuit is irrelevant to determining whether

they had probable cause to stop Morton’s vehicle. United States v.

Whren, 517 U.S. 806, 809-10 (1996); see also United States v.

Hassan El, 5 F.3d 726, 730 (4th Cir. 1993) (“[W]hen an officer

observes a traffic offense or other unlawful conduct, he or she is

justified in stopping the vehicle under the Fourth Amendment.”).

Having observed the malfunctioning brake light, the officers had

ample probable cause to initiate the stop. Accordingly, there was

no Fourth Amendment violation.

V. Response to Jury’s Inquiries

The next Anders issue is whether the district court

abused its discretion in handling the jury’s questions and

requests. This court reviews a district court’s decision to

respond to a jury’s question, and the form of that response, for

abuse of discretion. United States v. Smith, 62 F.3d 641, 646 (4th

Cir. 1995). “[I]n responding to a jury’s request for clarification

on a charge, the district court’s duty is simply to respond to the

jury’s apparent source of confusion fairly and accurately without

creating prejudice.” Id. An error requires reversal only if it is

prejudicial in the context of the record as a whole. See United

States v. United Med. & Surgical Supply Corp., 989 F.2d 1390,

1406-07 (4th Cir. 1993). Our review of the record leads us to

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conclude that the district court did not abuse its discretion in

handling any of the jury’s requests.

VI. Denial of Motion to Compel

Finally, Morton asserts that the district court erred in

denying his motion to compel the Government to withdraw the § 851

notice of its intent to seek an enhanced sentence and to reinstate

its plea offer. Morton appears to take the position that the

Government’s discovery of the audiotape of Lindsey’s narration of

events somehow triggered an obligation on the Government’s part to

withdraw the § 851 notice and to re-extend its plea offer, because

Morton decided to reject the Government’s plea deal prior to

knowing that this evidence existed.

This claim is wholly without merit. The Government

afforded Morton ample opportunity to plead guilty and avoid an

enhanced sentence under § 851. Morton rejected the proffered plea

offer, knowing that a consequence of that decision would be that

the Government would seek an enhanced sentence. It was not until

after Morton rejected the plea offer that the Government discovered

the audiotape of Lindsey’s conversation with dispatch. There was

no agreement between the parties that, should the Government

discover other inculpating evidence, it would permit Morton to

reconsider his not guilty plea. As there was simply no agreement

the court could have compelled the Government to perform, there was

no error in denying the motion to compel.

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 For the foregoing reasons, we affirm Morton’s convictions

and sentence. We deny Morton’s motions to file a pro se supplement

and to amend that supplement. 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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