UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4925
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
BRAD CHRISTOPHER HULL,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Lynchburg. Norman K. Moon, District
Judge. (6:06-cr-00013-nkm)
Submitted: February 8, 2010 Decided: March 5, 2010
Before WILKINSON and NIEMEYER, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Steven Jay Rozan, STEVEN JAY ROZAN & ASSOCIATES, Houston, Texas,
for Appellant. Julia C. Dudley, Acting United States Attorney,
Jean B. Hudson, Assistant United States Attorney,
Charlottesville, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Brad Christopher Hull was convicted after a jury trial
of one count of conspiracy to distribute and to possess with the
intent to distribute more than five kilograms of cocaine, in
violation of 21 U.S.C. § 846 (2006). The district court
sentenced Hull to 292 months’ imprisonment. Hull appeals,
asserting that the district court erred in denying his Fed. R.
Crim. P. 29 motions for judgment of acquittal, admitting witness
testimony, instructing the jury, and calculating his base
offense level under the U.S. Sentencing Guidelines Manual (2006)
without a jury finding the facts supporting that level beyond a
reasonable doubt. We affirm.
This court reviews de novo the district court’s denial
of Rule 29 motions for judgment of acquittal. United States v.
Reid, 523 F.3d 310, 317 (4th Cir.), cert. denied, 129 S. Ct. 663
(2008). A defendant challenging the sufficiency of the evidence
“bears a heavy burden.” United States v. Beidler, 110 F.3d
1064, 1067 (4th Cir. 1997) (internal quotation marks omitted).
The jury’s verdict must be sustained “if, viewing the evidence
in the light most favorable to the prosecution, the verdict is
supported by substantial evidence.” United States v. Smith, 451
F.3d 209, 216 (4th Cir. 2006) (internal quotation marks
omitted). Substantial evidence is “evidence that a reasonable
finder of fact could accept as adequate and sufficient to
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support a conclusion of a defendant’s guilt beyond a reasonable
doubt.” Id. (internal quotation marks omitted). In reviewing
for substantial evidence, this court considers both
circumstantial and direct evidence and allows the Government all
reasonable inferences from the facts shown to those sought to be
established. United States v. Harvey, 532 F.3d 326, 333
(4th Cir. 2008). This court does not weigh evidence or review
witness credibility. United States v. Wilson, 118 F.3d 228, 234
(4th Cir. 1997). Rather, it is the role of the jury to judge
the credibility of witnesses, resolve conflicts in testimony,
and weigh the evidence. United States v. Manbeck, 744 F.2d 360,
392 (4th Cir. 1984).
To convict Hull of conspiracy to distribute and to
possess with the intent to distribute cocaine, the Government
was required to establish beyond a reasonable doubt that: (1)
two or more persons agreed to distribute and possess with the
intent to distribute the drug, and (2) Hull knew of the
conspiracy and (3) “knowingly and voluntarily became a part” of
the conspiracy. United States v. Yearwood, 518 F.3d 220, 227
(4th Cir.) (internal quotation marks omitted), cert. denied,
129 S. Ct. 137 (2008). “The gravamen of the crime is an
agreement to effectuate a criminal act.” Id. at 226 (internal
quotation marks omitted). A defendant may be convicted of
conspiracy without knowing all of its details, as long he enters
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the conspiracy understanding that it is unlawful and willfully
joins in the plan at least once. See United States v. Burgos,
94 F.3d 849, 858 (4th Cir. 1996) (en banc).
Hull contends that the evidence is insufficient to
support his conviction because Government witnesses gave
inconsistent and unbelievable testimony. This challenge fails,
however, because witness credibility is not subject to appellate
review, Wilson, 118 F.3d at 234, and, as evidenced by its
finding of guilt, the jury resolved any conflicts in testimony
in favor of the Government and determined the Government’s
witnesses to be sufficiently credible, see Manbeck, 744 F.2d at
392. Further, after review of the record, we conclude that
there was sufficient evidence from which a jury could conclude
that Hull agreed with others to distribute and possess with the
intent to distribute cocaine and knowingly and voluntarily
participated in a scheme to do so. We therefore conclude that
the district court did not err in denying Hull’s Rule 29
motions.
Next, Hull argues that the district court abused its
discretion under Fed. R. Evid. 404(b) by allowing a witness to
testify about his prior cocaine base purchases from Hull. This
court typically reviews a district court’s evidentiary rulings
for abuse of discretion. United States v. Perkins, 470 F.3d
150, 155 (4th Cir. 2006). An abuse of discretion occurs only
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when the district court “acted arbitrarily or irrationally in
admitting evidence.” United States v. Williams, 445 F.3d 724,
732 (4th Cir. 2006) (internal quotation marks omitted).
Although not admissible to prove the defendant’s
character, evidence of other “crimes, wrongs, or acts” may be
admitted to prove “motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident.”
Fed. R. Evid. 404(b); see United States v. Hodge, 354 F.3d 305,
311-12 (4th Cir. 2004). Rule 404(b) is a rule of inclusion that
allows evidence of other crimes or acts to be admitted, except
that which tends to prove only criminal disposition. See United
States v. Queen, 132 F.3d 991, 994-95 (4th Cir. 1997). For such
evidence to be admissible, it must be “(1) relevant to an issue
other than the general character of the defendant; (2) necessary
to prove an element of the charged offense; and (3) reliable.”
Hodge, 354 F.3d at 312. “Additionally, the probative value of
the evidence must not be substantially outweighed” by its
prejudicial effect. Id.
We conclude these elements are satisfied here.
Evidence of Hull’s prior drug sales was not admitted for the
purpose of establishing his character. Hull was charged with
conspiracy to distribute and to possess with the intent to
distribute cocaine, and evidence of Hull’s prior sales of
cocaine base was relevant to Hull’s knowledge, identity as a
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member of the conspiracy, and the absence of mistake. To
convict Hull of the conspiracy charge, the Government was
required to show that Hull knew of the conspiracy and knowingly
and voluntarily became a part of it. Hull’s prior sale of
cocaine base to a repeat buyer over two years was relevant and
necessary to demonstrating that Hull had knowledge of drug sales
and that his participation in the conspiracy was not an accident
or mistake. Hull does not assert that the witness testimony was
unreliable. Finally, we conclude that the probative value of
the evidence was not substantially outweighed by confusion or
unfair prejudice. Although this information was damaging to
Hull, it was not unfairly prejudicial, nor did it “subordinate
reason to emotion in the factfinding process.” United States v.
Gray, 405 F.3d 227, 239 (4th Cir. 2005) (internal quotation
marks omitted). Accordingly, we conclude that the district
court did not abuse its discretion in admitting the disputed
testimony under Rule 404(b).
Hull also asserts that the district court’s
instructions to the jury violated United States v. Collins, 415
F.3d 304, 311-15 (2005) (holding that in order for a district
court to determine which of the three graduated penalty
subsections of 21 U.S.C. § 841(b) (2006) applies to a defendant
convicted of a § 846 drug conspiracy, the jury must be
instructed to determine the threshold quantity of drugs
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attributable to each conspiracy defendant on trial). Because
Hull failed to object to the district court’s instructions on
this ground, we review this claim for plain error. United
States v. Olano, 507 U.S. 725, 732 (1993). To meet this
standard, Hull must show: (1) error existed; (2) the error was
plain; and (3) the error affected his substantial rights. Id.
at 731-34. Even if Hull makes this showing, we will exercise
our discretion to notice the error only if it “seriously affects
the fairness, integrity or public reputation of judicial
proceedings.” Id. at 736 (internal quotation marks and
alteration omitted). Hull fails to establish plain error,
however, as the district court’s instructions directed the jury
to find the amount of cocaine attributable to Hull. Therefore,
this claim fails.
Finally, we conclude that Hull’s Sixth Amendment
rights were not violated when the district court calculated
Hull’s base and total offense levels and resulting Guidelines
range based on facts it found by a preponderance of the
evidence. Because the district court appropriately treated the
resultant Guidelines range as advisory, and since Hull’s
sentence was within the statutory maximum authorized by the
jury’s verdict, we find that the district court fully complied
with the Sixth Amendment. See United States v. Booker, 543 U.S.
220, 232-44 (2005) (holding that judge-found sentence
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enhancements mandatorily imposed under the Guidelines that
result in a sentence greater than that authorized by the jury
verdict or facts admitted by the defendant violate the Sixth
Amendment’s guarantee of the right to trial by jury); see also
Rita v. United States, 551 U.S. 338, 352 (2007) (recognizing
that its “Sixth Amendment cases do not automatically forbid a
sentencing court to take account of factual matters not
determined by a jury and to increase the sentence in
consequence”); United States v. Benkahla, 530 F.3d 300, 312
(4th Cir. 2008) (recognizing only that “the Guidelines must be
advisory, not that judges may find no facts”), cert. denied, 129
S. Ct. 950 (2009).
We therefore affirm the district court’s judgment and
deny Hull’s motion seeking leave to file a pro se supplemental
brief. We dispense with oral argument because the facts and
legal conclusions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
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