UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4746
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
HENDRICK A. COUSAR, a/k/a Tony,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Rock Hill. Joseph F. Anderson, Jr., District
Judge. (0:11-cr-02276-JFA-3)
Submitted: August 20, 2013 Decided: August 27, 2013
Before SHEDD, DUNCAN, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Edye U. Moran, MORAN LAW OFFICES, Columbia, South Carolina, for
Appellant. William N. Nettles, United States Attorney, Julius
N. Richardson, Assistant United States Attorney, Columbia, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Hendrick A. Cousar appeals his conviction and
240-month sentence imposed following the jury verdict finding
him guilty of conspiracy to distribute 280 grams or more of
cocaine base (“Count One”), in violation of 21 U.S.C. § 846
(2006), and distribution of 28 grams or more of cocaine base
(“Count Six”), in violation of 21 U.S.C. § 841(a) (2006). On
appeal, counsel argues that (1) the district court abused its
discretion in refusing to give a proposed jury instruction
advising the jury that Cousar could not be convicted on Count
One for conspiring with a government agent, and (2) the district
court imposed an unreasonable sentence on Count Six. Finding no
reversible error, we affirm.
We review a district court’s decision to give or
refuse to give a particular jury instruction for abuse of
discretion. United States v. Passaro, 577 F.3d 207, 221 (4th
Cir. 2009). We generally must “defer to a district court’s
decision to withhold a defense in a proposed jury instruction in
light of that court’s superior position to evaluate evidence and
formulate the jury instruction.” United States v. Powell, 680
F.3d 350, 356 (4th Cir.), cert. denied, 133 S. Ct. 376 (2012)
(internal quotation marks and alterations omitted).
“As a general proposition a defendant is entitled to
an instruction as to any recognized defense for which there
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exists evidence sufficient for a reasonable jury to find in his
favor.” Matthews v. United States, 485 U.S. 58, 63 (1988); see
Powell, 680 F.3d at 356; see also United States v. Hicks, 748
F.2d 854, 857 (4th Cir. 1984) (“[A] defendant is entitled to an
instruction submitting to the jury any theory of defense for
which there is a foundation in the evidence.”). If this
requirement is met, a district court commits reversible error
when it fails to provide an instruction requested by a defendant
only if the instruction “(1) was correct; (2) was not
substantially covered by the court’s charge to the jury; and
(3) dealt with some point in the trial so important, that
failure to give the requested instruction seriously impaired the
defendant’s ability to conduct his defense.” See United
States v. Lewis, 53 F.3d 29, 32 (4th Cir. 1995) (internal
quotation marks omitted).
Cousar argues that the district court committed
reversible error in failing to instruct the jury that he could
not be convicted of conspiring only with a government agent.
Cousar relies in part on language from Hicks to argue that the
trial judge invaded the jury’s fact-finding function by
considering whether the evidence was sufficient to support the
proposed instruction.
In Hicks, this court cited with approval the Fifth
Circuit’s statement that:
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If the trial judge evaluates or screens the evidence
supporting a proposed defense, and upon such
evaluation declines to charge on that defense, he
dilutes the defendant’s jury trial by removing the
issue from the jury’s consideration. In effect, the
trial judge directs a verdict on that issue against
the defendant. This is impermissible.
Hicks, 748 F.2d at 857-58 (quoting Strauss v. United States, 376
F.2d 416, 419 (5th Cir. 1967)). However, Hicks itself
recognized that the appellant had a constitutional right to a
jury instruction on his alibi defense only if “there was
sufficient alibi evidence to permit the factfinder to pass on
the issue.” Hicks, 748 F.2d at 857. Similarly, viewing the
Strauss reference in context, the Fifth Circuit did not hold
that the trial judge was required to submit to the jury
instructions unsupported by the record. While concluding that
the trial judge cannot determine whether the requested
instruction relates to “a believable or sensible defense,”
Strauss recognized that the judge is tasked with “decid[ing]
whether the facts constituting the defense framed by the
proposed charge, if believed by the jury, are legally sufficient
to render the accused innocent,” and need only “be cautious and
unparsimonious in presenting to the jury all of the possible
defenses which the jury may choose to believe.” Id. (emphasis
added). Our more recent opinions also have recognized that the
trial court need not provide an instruction that is not
supported by the evidence adduced at trial. E.g., Powell, 680
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F.3d at 357 (affirming denial of proposed jury instruction on
“advice-of-counsel defense” after concluding district court
properly found defendant “failed to provide evidence from which
a reasonable jury might find” in favor of that defense).
Cousar also argues that United States v. Lively, 803
F.2d 1124 (11th Cir. 1986), is analogous to his case and compels
a finding that the district court committed reversible error.
However, we find this case readily distinguishable. In Lively,
the Eleventh Circuit found reversible error in the district
court’s failure to give a defendant’s proposed instruction that
he could not have conspired with a government agent to
distribute cocaine. Id. at 1128. The court concluded that the
trial evidence was sufficient to support a jury finding that the
alleged conspiratorial agreement arose only after the
defendant’s coconspirator became an informant. Id. at 1127-28.
Moreover, the timing of the agreement was crucial to the theory
of defense—that the defendant was unaware of his alleged
coconspirator’s intent to distribute cocaine until after the
coconspirator became a government agent. See id. at 1128.
Here, the evidence adduced at trial simply did not
support a finding that Cousar conspired only with a government
agent. While Cousar interacted with a government informant—his
codefendant Laventa Murray—on two occasions, the evidence
supported a finding that Cousar entered the charged conspiracy
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with Murray, if at all, only before Murray became an informant.
The evidence adduced at trial therefore did not provide a
foundation for the proposed instruction.
Moreover, the district court’s refusal to give the
proposed charge did not impede Cousar’s ability to conduct his
defense. In his defense, Cousar argued only that the alleged
coconspirators who testified against him were lying and that he
was not involved in their crack distribution activities.
Cousar’s ability to argue this theory was in no way affected by
the court’s refusal to provide the requested instruction. We
therefore conclude that the district court did not abuse its
discretion in refusing to give this charge.
Cousar next asserts that the district court imposed a
procedurally and substantively unreasonable sentence as to Count
Six. Cousar asserts that the district court improperly imposed
a sentence above the Guidelines range, failed to adequately
consider the 18 U.S.C. § 3553(a) (2006) factors or explain its
chosen sentence, and imposed a sentence greater than necessary
to fulfill the goals of sentencing. However, Cousar could not
have received a sentence lower than the one the district court
imposed, given the 240-month statutory mandatory minimum
sentence applicable to Count One. The sentence he received for
Count Six also was within the statutory sentencing range for
that offense. Thus, any error the court committed in imposing
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concurrent sentences of 240 months on these counts is harmless.
See United States v. Mehta, 594 F.3d 277, 283 (4th Cir. 2010)
(recognizing that procedural sentencing error is harmless “if
the resulting sentence was not longer than that to which the
defendant would otherwise be subject” (internal quotation marks
and alteration omitted)); United States v. Lynn, 592 F.3d 572,
576, 585 (4th Cir. 2010) (applying harmless error analysis to
procedural sentencing error, and recognizing that error is
harmless if “it did not have a substantial and injurious effect
or influence on the result” (internal quotation marks omitted));
see also United States v. Farrior, 535 F.3d 210, 224 (4th Cir.
2008) (“A statutorily required sentence . . . is per se
reasonable.”).
Accordingly, we affirm the district court’s judgment.
We deny Cousar’s motion for leave to file a pro se supplemental
brief. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional
process.
AFFIRMED
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