UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4945
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CARLOS TOLSON ANDREWS, a/k/a Crip Los,
Defendant - Appellant.
No. 06-5038
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DAMAR TYREECE PETERSON, a/k/a Fish Lips,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema, District
Judge. (1:06-cr-00017-LMB; 1:06-cr-00017-LMB-3)
Submitted: August 31, 2007 Decided: September 26, 2007
Before WILKINSON and KING, Circuit Judges, and WILKINS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Richard E. Gardiner, Fairfax, Virginia, for Appellants. Chuck
Rosenberg, United States Attorney, Patrick F. Stokes, G. Derek
Andreson, Assistant United States Attorneys, Alexandria, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
In these consolidated cases, a jury convicted Carlos
Tolson Andrews of conspiracy to distribute fifty or more grams of
cocaine base, in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(A)(iii) (2000), distributing cocaine base on or about June
15, 2005, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C) (2000)
and 18 U.S.C. § 2 (2000), and distributing cocaine base on or about
September 1, 2005, in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(C) (2000). The same jury convicted Damar Tyreece Peterson
of conspiracy to distribute five grams or less of cocaine base, in
violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846 (2000), and
distributing cocaine base on or about September 21, 2005, in
violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C) (2000) and 18 U.S.C.
§ 2 (2000). The court sentenced Andrews to 151 months’
imprisonment and Peterson to 63 months’ imprisonment. We affirm.
With respect to Andrews’ appeal, No. 06-4945, Andrews
first argues that the General Verdict form improperly instructed
the jury. Andrews contends that the failure to properly instruct
the jury was in violation of Pinkerton v. United States, 328 U.S.
640, 647-48 (1946), and United States v. Collins, 415 F.3d 304, 314
(4th Cir. 2005). The Government concedes the verdict form
“arguably provided an inadequate description of the law.” However,
the Government contends that the court’s instructions as a whole
were adequate. The Government describes that after the jury asked
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a question regarding the drug quantities, the court discussed with
the parties a proposed answer. The Defendants asked for a
modification to the answer. The court then gave the following
instruction:
If you have found a defendant guilty of being a member of
the conspiracy, then you have to determine . . . whether
the government has proven beyond a reasonable doubt the
quantity of drugs for which that defendant was involved
in the conspiracy or the quantity of drugs which it was
reasonably foreseeable to that individual defendant the
others would be distributing as part of the conspiracy.
All right? The law provides for a concept of reasonable
foreseeability. The burden is, of course, on the
government to prove what is reasonably foreseeable to an
individual defendant, all right?
This court reviews de novo the question of whether a
district court has properly instructed a jury. United States v.
Scott, 424 F.3d 431, 434 (4th Cir. 2005). Moreover, this court
“will not vacate a conviction on the basis of an erroneous jury
charge if viewed as a whole and in the context of the trial, the
charge was not misleading and contained an adequate statement of
the law.” Id. (Internal quotation marks omitted). We find that
taken as a whole, the court complied with the rule in Collins and
properly instructed the jury.
Next, Andrews argues that the DEA chemist improperly
tested the substance containing cocaine base. Andrews asserts that
the DEA chemist’s methodology could have resulted in loose
particles, unrelated to the carrier medium, being included in the
test and unfairly increased the net weight of the substance
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attributed to Andrews. Under Chapman v. United States, 500 U.S.
453, 456 (1991), which Andrews concedes is the controlling law,
the weight of a drug includes the net weight of the drug plus any
dilutant, cutting agent or carrier medium. We find Andrews’
argument is pure speculation as there was no evidence presented
that the DEA chemist improperly tested the drugs or included
unrelated material. The issue accordingly provides no basis for
relief.
Andrews also argues that the evidence is insufficient to
support the court’s finding that the quantity of cocaine base
attributable to Andrews is 50 to 150 grams. When reviewing the
district court’s application of the sentencing guidelines, this
court reviews findings of fact for clear error. United States v.
Green, 436 F.3d 449, 456 (4th Cir.), cert. denied, 126 S. Ct. 2309
(2006). In calculating the guideline range for each co-
conspirator, “all reasonably foreseeable acts and omissions of
others in furtherance of the jointly undertaken criminal activity,
that occurred during the commission of the offense of conviction,
in preparation for that offense, or in the course of attempting to
avoid detection or responsibility for that offense” are to be
included. U.S. Sentencing Guidelines Manual § 1B1.3(a)(1)(B)
(2005). After thoroughly reviewing the record, we find the court
did not clearly err by finding over 50 grams of cocaine base
attributable to Andrews.
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Finally, Andrews asserts that he should have received a
two level reduction at sentencing for being a minor participant.
The standard of review for factual determinations, such as whether
the appellant’s conduct warrants a minor role sentencing reduction,
is clear error. United States v. Daughtrey, 874 F.2d 213, 218 (4th
Cir. 1989). A defendant who is only a “minor participant” in a
criminal activity may have his offense level reduced by two levels.
USSG § 3B1.2(b). This applies to a defendant “who is less culpable
than most other participants, but whose role could not be described
as minimal.” USSG § 3B1.2(b), comment. (n.5). After reviewing the
record, we find that Andrews was extensively involved in
distributing cocaine base and conclude the court did not clearly
err by declining to apply a downward adjustment for having a minor
role.
With regard to Peterson’s appeal, No. 06-5038, Peterson
first argues that there was insufficient evidence to warrant his
conviction of conspiracy to distribute 50 grams or more of cocaine
base and distribution of cocaine base on September 21, 2005. This
court reviews the district court’s decision to deny a Fed. R. Crim.
P. 29 motion de novo. United States v. Smith, 451 F.3d 209, 216
(4th Cir.), cert. denied, 127 S. Ct. 197 (2006). A jury’s verdict
must be upheld on appeal if there is substantial evidence in the
record to support it. Glasser v. United States, 315 U.S. 60, 80
(1942). “[A]n appellate court’s reversal of a conviction on
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grounds of insufficient evidence should be confined to cases where
the prosecution’s failure is clear.” United States v. Jones, 735
F.2d 785, 791 (4th Cir. 1984) (internal quotation marks and
citation omitted). In determining whether the evidence in the
record is substantial, this court views the evidence in the light
most favorable to the government, and inquires whether there 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. United States v. Burgos, 94 F.3d 849,
862 (4th Cir. 1996) (en banc). A defendant challenging the
sufficiency of the evidence faces a heavy burden. United States v.
Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997). In evaluating the
sufficiency of the evidence, this court does not review the
credibility of the witnesses and assumes that the jury resolved all
contradictions in the testimony in favor of the government. United
States v. Romer, 148 F.3d 359, 364 (4th Cir. 1998).
“To prove a conspiracy under 21 U.S.C. § 846, the
government must prove (1) an agreement between two or more persons
to engage in conduct that violates a federal drug law, (2) the
defendant’s knowledge of the conspiracy, and (3) the defendant’s
knowing and voluntary participation in the conspiracy.” United
States v. Strickland, 245 F.3d 368, 384-85 (4th Cir. 2001); Burgos,
94 F.3d at 857. A defendant may be convicted of conspiracy without
knowing all the conspiracy’s details, as long as he joins the
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conspiracy understanding its unlawful nature and willfully joins in
the plan on at least one occasion. Burgos, 94 F.3d at 858. “The
existence of a tacit or mutual understanding between conspirators
is sufficient evidence of a conspiratorial agreement.” United
States v. Cardwell, 433 F.3d 378, 390 (4th Cir. 2005) (internal
quotation marks and citation omitted), cert. denied, 126 S. Ct.
1669 (2006); see Burgos, 94 F.3d at 857 (“By its very nature, a
conspiracy is clandestine and covert, thereby frequently resulting
in little direct evidence of such an agreement.”). Here, the
record contains the testimony of several witnesses regarding
Peterson’s participation in a crack cocaine distribution
conspiracy. We find there is substantial evidence in the record to
support the conviction.
Next, Peterson argues the evidence was insufficient to
convict him of distributing crack cocaine on September 21, 2005.
The jury posed a question regarding this count, which prompted the
judge to give an aiding and abetting instruction. We find there is
substantial evidence in the record to support the conviction under
this theory.
Finally, Peterson contends that the district court erred
by considering acquitted conduct in determining his offense level
under the Sentencing Guidelines. A district court is free to
consider acquitted conduct proved at sentencing by a preponderance
of the evidence, even after United States v. Booker, 543 U.S. 220
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(2005). See United States v. Duncan, 400 F.3d 1297, 1304-05 (11th
Cir.), cert. denied, 126 S. Ct. 432 (2005); United States v.
Williams, 399 F.3d 450, 453-54 (2d Cir. 2005). We find the issue
is without merit.
Accordingly, the judgments of the district court are
affirmed. 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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