United States v. Damon Dock, Jr.

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-4552

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

DAMON DOCK, JR., a/k/a Damon Dock,

Defendant – Appellant.

No. 12-4773

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

DAMON DOCK, a/k/a Corky,

Defendant – Appellant.

Appeal from the United States District Court for the Western
District of Virginia, at Abingdon. James P. Jones, District
Judge. (1:11-cr-00026-JPJ-PMS-4; 1:11-cr-00026-JPJ-PMS-3)

Submitted: July 12, 2013 Decided: August 27, 2013

Before DUNCAN and DIAZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.

Wayne D. Inge, LAW OFFICE OF WAYNE D. INGE, Roanoke, Virginia,
for Appellant Damon Dock, Jr., Michael T. Hemenway,
Charlottesville, Virginia, for Appellant Damon Dock. Timothy J.
Heaphy, United States Attorney, Roanoke, Virginia, Zachary T.
Lee, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Abingdon, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

2
PER CURIAM:

Damon Dock, Jr., (“Junior”) and his father, Damon Dock

(“Corky”), appeal their convictions after they were found guilty

by a jury of conspiracy to distribute and possess with the

intent to distribute five kilograms or more of cocaine base in

violation of 21 U.S.C. §§ 841(b)(1)(A) and 846. Junior claims

that the district court erred when it refused to impose a

sentence less than the statutory mandatory minimum sentence.

Corky claims that the evidence is insufficient to support the

jury’s verdict and that the district court erred in the amount

of drugs it attributed to him for sentencing purposes.

For the reasons that follow, we affirm.

From the end of 2010 until May 2011, Corky distributed an

approximate total of two kilograms of cocaine base (“crack

cocaine”) to co-defendants Chris Berry and Amy Moser, Berry’s

girlfriend. * In exchange, Berry gave Corky stolen property,

which Corky’s girlfriend, Hope Leonard, then sold.

*
Because the jury returned a guilty verdict, we review the
evidence in the light most favorable to the government. See
United States v. Burgos, 94 F.3d 849, 862-63 (4th Cir. 1996) (en
banc).

3
On multiple occasions during the same timeframe, Junior

traveled with Corky and Leonard to Johnson City, Tennessee, to

meet Corky’s supplier, Chris Avery, and transport crack cocaine

to Corky’s residences in Bristol, Tennessee, and Bristol,

Virginia.

On May 19, 2011, Berry, Moser, Corky, Leonard, and Junior

checked into a hotel in Bristol, Tennessee, and spent the day

smoking crack cocaine. At one point, Leonard and Corky left to

get more crack cocaine from Avery and returned with one-half to

three-quarters of an ounce of the drug. Later in the day, Corky

sent Leonard to deliver crack cocaine to one of Corky’s

customers. After Leonard left, the United States Marshals

Service, which had been conducting surveillance on the hotel

room and had previously obtained an arrest warrant for Berry,

identified Berry in the room and made entry. Deputy Marshals,

along with other law enforcement officers, took Berry, Moser,

Corky, and Junior into custody. The officers found digital

scales, drug paraphernalia, a Beretta handgun, prescription

medication, and 5.7 grams of crack cocaine in the room.

A federal grand jury returned a multi-count indictment

charging Corky, Junior, and their four co-defendants--Berry,

Leonard, Avery, and Avery’s girlfriend, Maggie Welch--with

conspiring to distribute and possess with the intent to

4
distribute five kilograms or more of cocaine base in violation

of 21 U.S.C. §§ 841(b)(1)(A) and 846.

Corky and Junior pleaded not guilty. At trial, several of

Corky and Junior’s co-defendants testified. Moser testified

that she had seen Corky with ten grams of crack cocaine on the

day they were arrested. She also saw Corky give Junior crack

cocaine on at least one prior occasion and had once purchased

crack cocaine from Junior. Moser also drove Junior to Johnson

City, Tennessee, to pick up a quantity of crack cocaine

“[p]robably bigger than a golf ball” from Avery. J.A. 96.

Welch testified that she saw Avery deliver “cookies” of

crack cocaine to Corky’s residence on at least two occasions.

She further testified that Avery and Corky would transact their

business in the driveway of Corky’s home.

Berry testified that he and Moser obtained varying amounts

of crack cocaine from Corky “on a daily basis” from the end of

2010 until May 2011. J.A. 264. Berry saw Avery deliver crack

cocaine to Corky on two occasions--bringing half of a kilogram

on his first visit and approximately one kilogram the next.

According to Berry, Junior transported crack cocaine that Junior

received from Avery in Johnson City, Tennessee, to Corky’s homes

in Bristol, Tennessee, and Bristol, Virginia. Berry also

traveled with Corky and Junior numerous times to pick up crack

cocaine from Avery.

5
C.

The district court sentenced Junior--without objection--to

the statutory mandatory minimum sentence of 240 months’

imprisonment. Corky objected to the drug weight calculations

contained within his presentence report (“PSR”). The PSR

attributed to him not less than 840 grams but not more than 2.8

kilograms of crack cocaine, placing Corky at a total offense

level of thirty-four. The district court overruled Corky’s

objection and sentenced him to 132 months’ imprisonment.

II.

Junior challenges the district court’s refusal to impose a

sentence less than the mandatory minimum sentence provided by

§ 841(b). Because Junior did not object to his sentence when it

was imposed, we review the district court’s judgment for plain

error. United States v. Lynn, 592 F.3d 572, 577 (4th Cir.

2010). To prevail on appeal, Junior must show that “(1) an

error was made, (2) the error is plain, and (3) the error

affects substantial rights.” United States v. Massenburg, 564

F.3d 337, 342-343 (4th Cir. 2009) (citing United States v.

Olano, 507 U.S. 725, 731 (1993)); see also Fed. R. Crim. P.

52(b).

Junior contends that the district court had the authority

to sentence him to a term of imprisonment less than that which

6
is provided in § 841(b). We disagree. In fact, we have held

that “[e]xcept upon motion of the [g]overnment on the basis of

substantial assistance, a district court . . . may not depart

below a statutory minimum.” United States v. Robinson, 404 F.3d

850, 862 (4th Cir. 2005). Since no such motion exists in this

case, the district court lacked the authority to sentence Junior

to less than the statutory mandatory minimum.

In Miller v. Alabama, 132 S. Ct. 2455 (2012), which Junior

relies upon for his argument, the Supreme Court invalidated

mandatory life terms of imprisonment without parole for those

defendants under the age of 18. In this case, however, Junior

was twenty years old at the time of his sentencing. Therefore,

Miller is of no help to Junior.

Junior next argues that his sentence amounts to cruel and

unusual punishment, in violation of the Eighth Amendment. We

again disagree, as “the mere fact that [Junior’s] . . . sentence

was mandatorily imposed does not render it ‘cruel and unusual.’”

United States v. Kratsas, 45 F.3d 63, 69 (4th Cir. 1995).

Moreover, we will not conduct a proportionality review “for any

sentence less than life imprisonment without the possibility of

parole.” United States v. Ming Hong, 242 F.3d 528, 532 & n.3

(4th Cir. 2001).

Junior’s reliance on United States v. C.R., 792 F. Supp. 2d

343 (E.D.N.Y. 2011), to support his Eighth Amendment argument is

7
misplaced. In C.R., the district court found that a statutory

minimum five-year term of imprisonment violated a

developmentally immature defendant’s Eighth Amendment rights.

We are not bound by that holding and, in any event, there is

nothing in the record to suggest that Junior is, or has ever

been, developmentally immature. Accordingly, this argument

fails.

Lastly, Junior contends that the district court erred when

it failed to consider the factors set forth in 18 U.S.C.

§ 3553(a) in arriving at its sentence. This claim lacks merit,

as we have previously concluded that “no conflict exists between

§ 3553(a) and . . . statutorily-imposed mandatory minimum

sentence[s].” United States v. Crenshaw, 486 F. App’x 379, 380

(4th Cir. 2012) (unpublished); see also United States v. Kellum,

356 F.3d 285, 289 (3d Cir. 2004) (stating that mandatory minimum

sentences “clearly fit within the ‘except as otherwise

specifically provided’ exclusion of 3551(a)”). Thus, the

district court’s failure to consider the § 3553(a) factors was

not error, plain or otherwise.

III.

Corky challenges the sufficiency of the evidence to sustain

the jury’s finding of guilt beyond a reasonable doubt. He also

8
challenges the district court’s adoption of his PSR’s drug

weight calculation.

As to his first claim, Corky contends that the government’s

evidence “proved nothing more than a buyer-seller relationship

between [Corky] and the witnesses for the government” and that

the government failed to prove the existence of a conspiracy to

distribute crack cocaine. Appellant’s Br. at 15.

Corky characterizes the testimony of his coconspirators and

codefendants as incredible, claiming that almost all of the

government’s witnesses were “drug users, drug dealers, or

convicted felons.” Appellant’s Br. at 16. Corky also notes

that most were testifying in the hopes of receiving a future

sentence reduction as part of their plea to federal conspiracy

charges.

This argument presents a question of law which we review de

novo. United States v. Alerre, 430 F.3d 681, 693 (4th Cir.

2005). In determining the sufficiency of the evidence, we

consider “whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a

reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319

(1979). We will affirm a jury verdict “if there is substantial

evidence . . . to support it.” Glasser v. United States, 315

9
U.S. 60, 80 (1942). “[S]ubstantial evidence 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.” Burgos, 94 F.3d at 862. In conducting

this review, we must remain cognizant that “[t]he jury, not

[this] court, weighs the credibility of the evidence.” Id.

“[I]f the evidence supports different, reasonable

interpretations, the jury decides which interpretation to

believe.” Id.

We have independently reviewed the record, and conclude

that there was substantial evidence from which a rational jury

could convict Corky of the charged offense. The jury weighed

the testimony of the government’s witnesses and found them to be

credible, and we have no cause to conclude otherwise.

Corky next contends that the evidence presented at trial

supports a drug weight calculation of no more than 280 grams,

the minimum amount that the jury specifically attributed to

Corky. As a result, Corky argues, the district court erred when

it attributed to him no less than 840 grams but no more than 2.8

kilograms of crack cocaine.

“In assessing whether [the district] court properly applied

the [Sentencing] Guidelines, we review the court’s factual

findings for clear error.” United States v. Osborne, 514 F.3d

10
377, 387 (4th Cir. 2008) (internal quotations omitted). “In

determining the amount of drugs attributable to a defendant

convicted of drug conspiracy, the district court may consider

relevant information that is prohibited from being introduced at

trial . . . . Further, the district court may attribute to the

defendant the total amount of drugs involved in the conspiracy.”

United States v. Randall, 171 F.3d 195, 210 (4th Cir. 1999).

The record evidence in this case provides ample support for

the district court’s drug weight calculation. Indeed, Avery’s

testimony that he and Welch “went through a couple of

[kilograms], easy,” during the time Avery was buying crack

cocaine from Corky, is alone sufficient to support the district

court’s finding. J.A. 270. Accordingly, the district court did

not err, much less plainly, when it accepted the PSR’s

determination as to drug weight, and enhanced Corky’s total

offense level to thirty-four.

IV.

We affirm the district court’s judgments. 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