UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-5096
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SHAKEEM HERATIO CRAWFORD,
Defendant - Appellant.
No. 08-4029
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SHAKEEM HERATIO CRAWFORD,
Defendant - Appellant.
Appeals from the United States District Court for the Northern
District of West Virginia, at Martinsburg. John Preston Bailey,
District Judge. (3:06-cr-00069-JPB-1)
Submitted: July 2, 2008 Decided: September 5, 2008
Before WILKINSON, TRAXLER, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Lary D. Garrett, GARRETT & GARRETT, Moorefield, West Virginia, for
Appellant. Sharon L. Potter, United States Attorney, Thomas O.
Mucklow, Assistant United States Attorney, Martinsburg, West
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Shakeem Heratio Crawford was convicted after a jury trial
of one count of conspiracy to possess with intent to distribute and
to distribute in excess of fifty grams of crack cocaine, in
violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846 (2000); one
count of distribution of crack cocaine and two counts of possession
with intent to distribute crack cocaine, in violation of 21 U.S.C.
§ 841(a)(1). In the presentence report (PSR), the probation
officer grouped all counts and determined that Crawford’s relevant
conduct totaled between 351.96 and 355.209 grams of crack cocaine,
which yielded a base offense level of thirty-two pursuant to U.S.
Sentencing Guidelines Manual (USSG) § 2D1.1(c)(4) (2007).
Crawford’s prior criminal activity, however, resulted in his
designation as a career offender pursuant to USSG § 4B1.1(b)(B),
which increased his offense level to thirty-seven and mandated a
criminal history category of VI. The Guidelines range was 360
months to life imprisonment.
Crawford filed several objections to the PSR, only two of
which are relevant to this appeal. First, he asserted that the
March 18, 1998, New York state conviction for attempted sale of a
controlled substance was not a felony conviction and thus could not
serve as a predicate for career offender sentencing. He also
objected to the PSR’s determination of his drug quantity relevant
conduct as unsupported by the evidence at trial. The district
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court overruled Crawford’s objection to the characterization of his
1998 conviction as a felony controlled substance offense and found
that he was a career offender, which mooted his other objections.
The court also denied Crawford’s request for a downward departure
or variance, and sentenced him to 360 months of imprisonment, ten
years of supervised release, and a $400 special assessment.
Crawford timely appealed. We affirm.
On appeal, Crawford asserts several errors by the
district court. He first argues that the district court erred in
denying his motion for judgment of acquittal at the close of the
Government’s case, and in denying his motion for a new trial. He
claims that the evidence was insufficient to send the case to the
jury, or to sustain the jury’s verdict, in that it was insufficient
to establish that he was in fact the person, “Nico,” described by
the Government’s witnesses. He does not assert that the crimes in
question did not occur, but rather that he was not the person who
committed those crimes.
This court reviews the district court’s denial of a
motion for judgment of acquittal de novo, and its ruling on a
motion for a new trial for abuse of discretion. See United
States v. Ryan-Webster, 353 F.3d 353, 359 (4th Cir. 2003); United
States v. Rhynes, 206 F.3d 349, 360 (4th Cir. 1999) (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.
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1997). “[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). 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). 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). 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). Our review of the record leads us to conclude that the
evidence was sufficient to establish Crawford’s guilt.
Crawford next asserts that the Government committed
reversible error during the testimony of Trooper Brian Bean when
the Assistant United States Attorney (AUSA) attempted to elicit
hearsay testimony. Although he states that the standard of review
is for abuse of discretion, Crawford does not assert any error by
the district court in its response to his objections to this
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testimony. Contrary to Crawford’s argument, the Government did not
place inadmissible hearsay before the jury, because the district
court sustained his objections before Trooper Bean could state the
basis for his belief that Crawford’s information was consistent
with other information developed in the investigation.
To the extent Crawford’s argument can be construed as
alleging prosecutorial misconduct, it is without merit. A claim of
prosecutorial misconduct is reviewed to determine whether the
conduct complained of so infected the trial with unfairness as to
make the resulting conviction a denial of due process. United
States v. Scheetz, 293 F.3d 175, 185 (4th Cir. 2002). To prevail
under this standard, Crawford must show that “the prosecutor’s
remarks or conduct were improper and, second . . . that such
remarks or conduct prejudicially affected his substantial rights”
so as to deprive him of a fair trial. Id. The questioning in this
instance was not improper, but rather part of the normal
examination of a witness that may elicit an objectionable answer.
Nor did this questioning prejudice Crawford, as no actual hearsay
was placed before the jury. Crawford is not entitled to relief on
this claim.
Crawford also argues that the district court erred in
sustaining the Government’s objection and prohibiting him from
mentioning an indicted co-conspirator as a missing witness. “The
district court is afforded broad discretion in controlling closing
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arguments and is only to be reversed when there is a clear abuse of
its discretion.” United States v. Rhynes, 196 F.3d 207, 236 (4th
Cir. 1999). “It is well settled that the rule regarding missing
witness instructions is that if a party has it peculiarly within
his [or her] power to produce witnesses whose testimony would
elucidate the transaction, the fact that he [or she] does not do it
creates the presumption that the testimony, if produced, would be
unfavorable.” United States v. Brooks, 928 F.2d 1403, 1412 (4th
Cir. 1991) (internal quotation marks omitted). Crawford has
produced no evidence that the witness was accessible only to the
Government, or any other reason that he could not have subpoenaed
the witness to testify at trial. The district court did not abuse
its discretion in sustaining the Government’s objection to
Crawford’s argument.
Crawford next asserts that the district court erred in
overruling his objection to the AUSA’s statements regarding
reasonable doubt during final argument, and that the AUSA plainly
erred in that same argument in stating that the Constitution had
nothing to do with this case. Our review of the statements in
question, in the context of the arguments as a whole, leads us to
conclude that the remarks about standards of proof were not
improper, but were an appropriate response to the remarks of
Crawford’s counsel. The AUSA’s remarks about the Constitution
were, although perhaps unnecessary, not improper. The jury’s
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function was to decide whether the Government had produced
sufficient evidence to establish the facts necessary to prove
Crawford’s guilt. Any Constitutional issues were the exclusive
province of the trial judge. Crawford is not entitled to relief on
this claim.
Crawford next argues that the district court erred in
concluding that he was a career offender and that his relevant
conduct greatly exceeded fifty grams of crack cocaine. Crawford
was classified as a career offender based on two prior felony
convictions for a controlled substance offense. Crawford claims he
has only one prior felony conviction of a controlled substance
offense. In considering the district court’s application of the
Guidelines, this court reviews factual findings for clear error and
legal conclusions de novo. United States v. Allen, 446 F.3d 522,
527 (4th Cir. 2006). Crawford argues, as he did before the
district court, that his 1998 New York conviction for attempted
sale of heroin is not a felony controlled substance offense. Our
review of the record convinces us otherwise. The district court
properly determined that Crawford was a career offender, and
correctly calculated his Guidelines sentencing range. Because he
was properly classified as a career offender, any error in
determining the relevant conduct drug quantity had no effect on his
Guidelines range.
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Crawford’s final argument is that his 360-month sentence
is an abuse of discretion in that the district court erred in
denying his motion for departure or variance because his criminal
history category overstated the seriousness of his past criminal
conduct. Regarding Crawford’s request for a downward departure,
the record reflects that the district court recognized its
authority to depart but concluded that a departure was not
warranted on the facts of this case. The court’s decision is
therefore not reviewable on appeal. United States v. Brewer, 520
F.3d 367, 371 (4th Cir. 2008).
We review a sentence for reasonableness, applying an
abuse of discretion standard. Gall v. United States, 128 S. Ct.
586, 597 (2007). As discussed above, Crawford’s Guidelines range
was correctly calculated, and the record reveals that the district
court explicitly stated that it considered the factors set forth in
18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2008), and explained its
reasons for selecting the sentence imposed. Crawford’s sentence is
thus without procedural defect. This court presumes that a
sentence imposed within the properly calculated Guidelines range is
reasonable. United States v. Go, 517 F.3d 216, 218 (4th Cir.
2008); see Rita v. United States, 127 S. Ct. 2456, 2462-69 (2007)
(upholding presumption of reasonableness for within-Guidelines
sentence). The record contains nothing that indicates the district
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court abused its discretion in selecting a 360-month sentence,
which was the bottom of the applicable Guidelines range.
Accordingly, we affirm Crawford’s convictions 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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