UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4508
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MARCUS STEVE BASKERVILLE, a/k/a Fat Bastard,
Defendant - Appellant.
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JAMES BENTON, Juvenile Clerk,
Movant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Catherine C. Blake, District Judge.
(CR-02-410-CCB)
Argued: September 26, 2007 Decided: November 7, 2007
Before WILKINSON, Circuit Judge, HAMILTON, Senior Circuit Judge,
and T. S. ELLIS, III, Senior United States District Judge for the
Eastern District of Virginia, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Harvey Greenberg, Towson, Maryland, for Appellant.
Stephanie Agli Gallagher, Assistant United States Attorney, OFFICE
OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.
ON BRIEF: Rod J. Rosenstein, United States Attorney, Debra L.
Dwyer, Assistant United States Attorney, Andrea L. Smith, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
A jury convicted Marcus Baskerville of conspiracy to possess
with the intent to distribute and to distribute in excess of fifty
grams of cocaine base (crack), 21 U.S.C. § 846. Baskerville
appeals his conviction and sentence, challenging the exclusion of
certain evidence, the sufficiency of the evidence to support his
conviction, and the sentence imposed by the district court. We
affirm.
First, Baskerville asserts that, under Rule 804(b)(3) of the
Federal Rules of Evidence, the district court should have allowed
him to call Royal Diamond Downs as a witness at trial. According
to Baskerville, Downs would have testified that Baskerville’s
coconspirator, Keon Moses, stated to Downs that Aaron Butler, not
Baskerville, participated in the September 23, 2001 attack on three
rival drug dealers, which attack left two of the dealers dead and
one seriously injured. In resolving Baskerville’s claim, the
district court assumed that Moses was unavailable and that his
statement to Downs exposed Moses to criminal liability, ultimately
rejecting the claim on the basis that corroborating circumstances
did not clearly indicate the trustworthiness of Moses’s statement.
See Fed. R. Evid. 804(b)(3) (providing that, if the declarant is
unavailable as a witness, “[a] statement tending to expose the
declarant to criminal liability and offered to exculpate the
accused is not admissible unless corroborating circumstances
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clearly indicate the trustworthiness of the statement”). Although
we have serious doubt that Moses’s statement was against his penal
interest, our careful consideration of the court’s ruling leads us
to conclude that the court did not abuse its discretion in holding
that the proffered testimony lacked sufficient indices of
reliability to be admissible under Rule 804(b)(3). See United
States v. Bumpass, 60 F.3d 1099, 1102 (4th Cir. 1995) (stating
standard of review for admission of Rule 804(b)(3) evidence); see
also United States v. Lowe, 65 F.3d 1137, 1145-46 (4th Cir. 1995)
(discussing corroborating circumstances).
Next, Baskerville asserts that the evidence before the jury
was insufficient to convict him of participating in a conspiracy to
possess with the intent to distribute and to distribute crack. 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 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) (citation and internal
quotation marks omitted). In determining whether the evidence in
the record is substantial, we view the evidence in the light most
favorable to the government and inquire 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
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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, we do not review the credibility of the witnesses and
assume 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). We have carefully reviewed the record and
conclude that the evidence in the record is sufficient to support
the jury’s verdict. See Burgos, 94 F.3d at 857 (“To prove [a drug
conspiracy], the Government must establish that (1) an agreement to
possess [illicit drugs] with intent to distribute existed between
two or more persons; (2) the defendant knew of the conspiracy; and
(3) the defendant knowingly and voluntarily became a part of this
conspiracy.”).
Finally, Baskerville challenges his sentence. Although his
sentencing argument is a bit confusing, the gist of the argument is
that his sentence runs afoul of our decision in United States v.
Collins, 415 F.3d 304 (4th Cir. 2005), where we held that a
defendant found guilty of a conspiracy to violate 21 U.S.C.
§ 841(a) should be sentenced under 21 U.S.C. § 841(b) only by
considering the amount of drugs reasonably foreseeable to the
individual defendant (as opposed to the amount distributed by the
entire conspiracy). Collins, 415 F.3d at 312-14. Because
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Baskerville did not raise the Collins issue in the district court,
our review is for plain error. See United States v. Olano, 507
U.S. 725, 732 (1993) (holding that, on plain error review, reversal
is warranted only if the court can (1) identify an error, (2) which
is plain, (3) which affects substantial rights, and (4) which
seriously affects the fairness, integrity, or public reputation of
judicial proceedings). Even assuming for the sake of argument that
a Collins error occurred below, Baskerville’s substantial rights
were not affected by the assumed error because his 216-month
sentence does not exceed the twenty-year statutory default maximum
sentence set forth in 21 U.S.C. § 841(b)(1)(C). Cf. United States
v. Promise, 255 F.3d 150, 156-57 (4th Cir. 2001) (holding that a
sentence in excess of the authorized statutory maximum to which a
defendant would not otherwise be subject affects his substantial
rights).
For these reasons, we affirm the judgment of the district
court.
AFFIRMED
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