United States v. Alexander

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 09-5198

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

ROBERT BERNARD ALEXANDER,

Defendant - Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, Jr.,
District Judge. (1:08-cr-00269-WO-1)

Submitted: August 6, 2010 Decided: August 17, 2010

Before TRAXLER, Chief Judge, and GREGORY and AGEE, Circuit
Judges.

Affirmed by unpublished per curiam opinion.

Louis C. Allen III, Federal Public Defender, Eric D. Placke,
Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Greensboro, North Carolina, for Appellant. Anna Mills
Wagoner, United States Attorney, Greensboro, North Carolina,
Paul A. Weinman, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Winston-Salem, North Carolina, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

A jury convicted Robert Bernard Alexander of possessing

with intent to distribute 35.9 grams of crack in violation of 21

U.S.C. § § 841(a)(1) and (b)(1)(B). The district court sentenced

Alexander to a prison term of 262 months, and Alexander now

appeals his conviction and sentence. Finding no error, we

affirm.

Alexander first challenges the district court’s order

denying his motion to suppress the cocaine base found during a

search of his residence following his arrest for driving with a

revoked license. “In reviewing a district court's ruling on a

motion to suppress, we review the court's factual findings for

clear error, and its legal conclusions de novo.” United States

v. Cain, 524 F.3d 477, 481 (4th Cir. 2008). When the district

court denies a defendant's suppression motion, we construe “the

evidence in the light most favorable to the government.” United

States v. Grossman, 400 F.3d 212, 216 (4th Cir. 2005).

Alexander argues that the government failed to meet its

burden of establishing voluntary consent. A statement is

voluntary if it is “the product of an essentially free and

unconstrained choice by its maker.” Schneckloth v. Bustamonte,

412 U.S. 218, 225 (1973). The relevant determination regarding

voluntariness is whether government agents have overborne the

defendant’s will or left his “capacity for self-determination

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critically impaired.” Id. Whether consent is given voluntarily

or is the product of duress or coercion is a question of fact

that is determined from the totality of all the circumstances

and, accordingly, is reviewed under the clearly erroneous

standard. See id. at 248-49 (explaining that “[v]oluntariness

is a question of fact to be determined from all the

circumstances”); United States v. Lattimore, 87 F.3d 647, 650

(4th Cir. 1996) (en banc) (“The voluntariness of consent to

search is a factual question, and as a reviewing court, we must

affirm the determination of the district court unless its

finding is clearly erroneous.”). Relevant considerations

include “the characteristics of the accused (such as age,

maturity, education, intelligence, and experience) as well as

the conditions under which the consent to search was given (such

as the officer's conduct; the number of officers present; and

the duration, location, and time of the encounter).” See

Lattimore, 87 F.3d at 650.

We have reviewed the record and conclude that the district

court’s finding that Alexander voluntarily consented to the

search of his residence was not clearly erroneous. Viewed in

the light most favorable to the government, the evidence showed

that Alexander gave both written and verbal consent for officers

to search the residence and that such consent was voluntary.

The encounter took place in the defendant’s residence in the

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afternoon during daylight hours; almost all of the officers were

in plain clothes and the defendant knew some of them; none of

the officers brandished a weapon; the search lasted for only one

hour; the defendant cooperated and even volunteered information;

and the defendant was aware of his right to refuse consent as

shown by his initial refusal to turn over the key and the fact

that “he was aware that officers had to obtain his agreement to

[perform] the limited protective sweep before they could enter

his home.” J.A. 92. To the extent that Alexander asserts a new

challenge to the evidence recovered from his residence as

derivative of an illegal search of his vehicle, our review of

the record under the plain error standard reveals no basis for

reversal. See United States v. Lynn, 592 F.3d 572, 577 (4th

Cir. 2010) (“[I]n the absence of proper preservation, plain-

error review applies.”).

Alexander next challenges the sufficiency of the evidence.

This Court reviews “de novo a district court's denial of a

motion, made pursuant to Rule 29 of the Federal Rules of

Criminal Procedure, for judgment of acquittal.” United States

v. Smith, 451 F.3d 209, 216 (4th Cir. 2006). In undertaking

such a review, this Court is “obliged to sustain a guilty

verdict if, viewing the evidence in the light most favorable to

the prosecution, the verdict is supported by substantial

evidence.” Id. (internal quotation marks omitted). In

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determining whether the evidence is substantial, this Court

“view[s] the evidence in the light most favorable to the

government and inquire[s] 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. Foster, 507 F.3d 233, 245

(4th Cir. 2007).

In order to establish possession with intent to

distribute, the Government had to prove beyond a reasonable

doubt: “(1) possession of the cocaine base; (2) knowledge of

this possession; and (3) intention to distribute the cocaine

base.” See United States v. Burgos, 94 F.3d 849, 873 (4th Cir.

1996) (en banc). Possession can be actual or constructive--“[a]

defendant may have constructive possession of contraband even if

it is not in his immediate possession or control.” United

States v. Shorter, 328 F.3d 167, 172 (4th Cir. 2003).

“Constructive possession may be proved by demonstrating that the

defendant exercised, or had the power to exercise, dominion and

control over the item.” Burgos, 94 F.3d at 873 (internal

quotation marks omitted). Furthermore, “[l]ike conspiracy,

[c]onstructive possession may be established by either

circumstantial or direct evidence.” Id. (internal quotation

marks omitted).

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Alexander argues that the government failed to prove the

elements of possession. Our review of the record, however,

leads us to conclude that the evidence was more than sufficient

to establish Alexander’s possession of the narcotics,

constructive or actual.

Finally, Alexander challenges the procedural reasonableness

of his sentence. This Court reviews a sentence for

reasonableness under an abuse of discretion standard, Gall v.

United States, 552 U.S. 38, 51 (2007), which requires

consideration of both the procedural and substantive

reasonableness of a sentence. An appellate court must ensure

that the district court did not commit any “significant

procedural error,” such as failing to properly calculate the

guidelines range, failing to consider the 18 U.S.C. § 3553(a)

factors, failing to analyze any arguments presented by the

parties, or failing to adequately explain the selected sentence.

Id. at 51.

Alexander concedes that the district court correctly

calculated the advisory guideline range of 262 to 327 months.

However, he argues that the district court failed to

sufficiently explain the reasons for the sentence it imposed and

its rejection of Alexander’s request for a downward variance to

account for the guidelines’ disparity between offenses involving

cocaine powder and those involving crack cocaine. “When

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rendering a sentence, the district court must make an

individualized assessment based on the facts presented,”

applying the “relevant § 3553(a) factors to the specific

circumstances of the case before it.” United States v. Carter,

564 F.3d 325, 328 (4th Cir. 2009) (internal quotation marks and

emphasis omitted). The court must also “state in open court the

particular reasons supporting its chosen sentence,” id.

(internal quotation marks omitted), but, “[w]hen imposing a

sentence within the Guidelines, . . . the [court’s] explanation

need not be elaborate or lengthy because [G]uidelines sentences

themselves are in many ways tailored to the individual and

reflect approximately two decades of close attention to federal

sentencing policy,” United States v. Hernandez, 603 F.3d 267,

271 (4th Cir. 2010) (internal quotation marks omitted). We have

carefully reviewed the record and conclude that the district

court’s explanation was sufficient to show that it had

considered Alexander’s argument and that it had a reasoned basis

for imposing the sentence that it selected.

Accordingly, we affirm the judgment of the district court.

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