UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4369
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TAMAURIUS LEE ALLEN,
Defendant – Appellant.
No. 09-4773
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
THOMAS AVERY ALLEN, JR.,
Defendant – Appellant.
Appeals from the United States District Court for the Middle
District of North Carolina, at Winston-Salem. N. Carlton
Tilley, Jr., Senior District Judge. (1:07-cr-00409-NCT-1; 1:07-
cr-00409-NCT-2)
Submitted: October 6, 2010 Decided: December 2, 2010
Before MOTZ, GREGORY, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
J. Clark Fischer, RANDOLPH AND FISCHER, ATTORNEYS, Winston-
Salem, North Carolina; Brian M. Aus, Durham, North Carolina, for
Appellants. Anna Mills Wagoner, United States Attorney, Graham
T. Green, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Tamaurius Lee Allen and Thomas Avery Allen, Jr. were
convicted after a jury trial of various drug-related offenses
and sentenced to 150 months’ imprisonment and 360 months’
imprisonment, respectively. On appeal, Tamaurius challenges
only his convictions while Thomas challenges his convictions and
sentence. We affirm.
I.
Tamaurius was convicted of distribution of 26.1 grams
of cocaine base (Count One); distribution of 38.5 grams of
cocaine base (Count Two); and possession with intent to
distribute 40.1 grams of cocaine base (Count Four); all in
violation of 21 U.S.C. § 841(a)(1), (b)(1)(B) (2006). Thomas
was convicted of distribution of 63.4 grams of cocaine base
(Count Five); and distribution of 61.0 grams of cocaine (Count
Six); both in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)
(2006). Both brothers were convicted of distribution of 40.4
grams of cocaine base and aiding and abetting (Count Three), in
violation of 21 U.S.C. § 841(a)(1), (b)(1)(B), and 18 U.S.C. § 2
(2006). Prior to trial, the Government filed informations of
prior felony drug convictions pursuant to 21 U.S.C. § 851
(2006), as to each defendant.
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On appeal, Tamaurius contends that during the trial
the district court incorrectly admitted evidence that, prior to
the first drug transaction, a detective conducted surveillance
of the area and observed drug activity. Tamaurius contends that
this evidence was inadmissible under Federal Rules of Evidence
401 and 403. We review the district court’s evidentiary rulings
for abuse of discretion. United States v. Delfino, 510 F.3d
468, 470 (4th Cir. 2007), and we will not “‘vacate a conviction
unless we find that the district court judge acted arbitrarily
or irrationally’ in admitting evidence.” United States v.
Benkahla, 530 F.3d 300, 309 (4th Cir. 2008) (quoting United
States v. Ham, 998 F.2d 1247, 1252 (4th Cir. 1993)).
Rule 401 provides for the admission of “evidence
having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or
less probable than it would be without the evidence.” Fed. R.
Evid. 401. “[R]elevance typically presents a low barrier to
admissibility.” United States v. Leftenant, 341 F.3d 338, 346
(4th Cir. 2003). Thus, evidence is relevant if it is “worth
consideration by the jury” or has a “plus value.” United States
v. Queen, 132 F.3d 991, 998 (4th Cir. 1997) (internal quotation
marks omitted).
Rule 403 provides a “more limited bar to otherwise
admissible evidence.” United States v. Basham, 561 F.3d 302,
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326 (4th Cir. 2009), cert. denied, 130 S. Ct. 3353 (2010). The
rule “only requires suppression of evidence that results in
unfair prejudice — prejudice that damages an opponent for
reasons other than its probative value, for instance, an appeal
to emotion, and only when that unfair prejudice substantially
outweighs the probative value of the evidence.” United States
v. Mohr, 318 F.3d 613, 619-20 (4th Cir. 2003) (internal
quotation marks omitted).
The district court did not abuse its discretion in
admitting the challenged evidence. First, the evidence, which
was essentially background in nature and served to explain the
detective’s further surveillance and undercover operation, was
clearly relevant. See Fed. R. Evid. 401 advisory committee’s
note (“Evidence which is essentially background in nature can
scarcely be said to involve the disputed matter, yet it is
universally offered and admitted as an aid to understanding”).
Moreover, the district court did not abuse its
discretion in admitting the evidence under Rule 403. The
testimony did not contain any allegations that the detective saw
Tamaurius or Thomas selling drugs prior to the beginning of the
undercover operation. Accordingly, it cannot be said that any
risk of unfair prejudice substantially outweighed the
testimony’s probative value.
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Thomas first challenges the sufficiency of the
evidence on Counts Five and Six. We will sustain a guilty
verdict if, viewing the evidence in the light most favorable to
the Government, the verdict is supported by substantial
evidence. United States v. Burgos, 94 F.3d 849, 862 (4th Cir.
1996) (en banc). “[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.” Id. at 862. In our review, we “consider
circumstantial as well as direct evidence, and allow the
government the benefit of all reasonable inferences from the
facts proven to those sought to be established,” United States
v. Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982), and we assume
that the fact finder resolved all contradictions in the
testimony in favor of the Government. United States v. Brooks,
524 F.3d 549, 563 (4th Cir. 2008). “[A]s a general proposition,
circumstantial evidence may be sufficient to support a guilty
verdict even though it does not exclude every reasonable
hypothesis consistent with innocence.” United States v.
Osborne, 514 F.3d 377, 387 (4th Cir. 2008) (alteration and
quotation marks omitted). Having reviewed the record in light
of this standard, we conclude that the verdicts on Counts Five
and Six were supported by adequate evidence.
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Thomas next argues that the district court committed
two reversible errors during his sentencing proceeding. In
reviewing any sentence, “whether inside, just outside, or
significantly outside the Guidelines range,” this court applies
a “deferential abuse-of-discretion standard.” Gall v. United
States, 552 U.S. 38, 41 (2007). This court first “ensure[s]
that the district court committed no significant procedural
error.” Id. at 51. “If, and only if, we find the sentence
procedurally reasonable can we ‘consider the substantive
reasonableness of the sentence imposed under an abuse-of-
discretion standard.’” United States v. Carter, 564 F.3d 325,
328 (4th Cir. 2009) (quoting Gall, 552 U.S. at 51).
Procedural errors may include “failing to calculate
(or improperly calculating) the Guidelines range, treating the
Guidelines as mandatory, failing to consider the § 3553(a)
factors, selecting a sentence based on clearly erroneous facts,
or failing to adequately explain the chosen sentence--including
an explanation for any deviation from the Guidelines range.”
Gall, 552 U.S. at 51.
Thomas argues that the district court committed
procedural error by failing to recognize its ability to vary his
sentence downward based on his diminished capacity and the
crack-to-powder cocaine sentencing disparity. We conclude that
the district court did not commit reversible procedural error in
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either respect. First, the district court engaged Thomas’s
counsel at length before ultimately concluding no variance was
warranted based on Thomas’s alleged diminished capacity. The
district court began its statement of reasons by noting that it
had the freedom to vary from the Guidelines range, but
recognized that it must have a reason to vary. The district
court noted that mental capacity was a factor under § 3553(a)
but that, in this case, it was “not in a position” to grant a
downward variance because, although Thomas had a low IQ score
from his youth, he also admitted to extensive drug use during
his formative years. The district court further noted that
Thomas, when he was in prison and not using drugs, was able to
get his GED, which suggested that “when you are not using drugs,
you can do pretty good stuff.” This thoughtful discussion is
exactly what Gall requires, and the court did not commit
procedural error in denying a downward variance based on
Thomas’s diminished capacity.
Likewise, the district court did not commit procedural
error in refusing to vary from the crack/powder ratio applicable
to Thomas. In this case, the district court specifically
recognized its authority to vary from the 20:1 ratio in Thomas’s
case but simply declined to exercise that authority.
Accordingly, the district court did not commit procedural error.
See United States v. Caldwell, 585 F.3d 1347, 1355 (10th Cir.
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2009) (upholding district court’s decision not to vary from
crack/powder ratio because “[n]othing in Kimbrough [v. United
States, 552 U.S. 85 (2007)] mandates that a district court
reduce a defendant’s sentence in order to eliminate the
crack/powder sentencing disparities”).
For the foregoing reasons, we affirm the convictions
and sentences of Tamaurius Lee Allen and Thomas Avery Allen, Jr.
We grant Thomas’s motion to file a pro se supplemental brief.
We have considered the arguments asserted in the pro se brief
and conclude that they are without merit. 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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