UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4365
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MICHAEL ANTHONY CORNWELL,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., Chief District Judge. (3:06-cr-00216-RJC-3)
Submitted: March 8, 2011 Decided: March 21, 2011
Before NIEMEYER, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Aaron E. Michel, Charlotte, North Carolina, for Appellant. Anne
M. Tompkins, United States Attorney, Richard Lee Edwards,
Assistant United States Attorney, Asheville, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Anthony Cornwell appeals his conviction and
180-month sentence for two counts of conspiracy to distribute
cocaine, in violation of 21 U.S.C. § 846 (2006) (“Counts One and
Four”), and two counts of possession with the intent to
distribute, in violation of 21 U.S.C. § 841(a)(1) (2006),
(b)(1)(B) (“Counts Two and Five”). On appeal, he argues that
(1) there was insufficient evidence to sustain his convictions;
(2) his Sixth Amendment rights were violated when he was
sentenced based on a higher drug quantity than found by the
jury; and (3) his Fifth Amendment rights were violated when the
district court allowed the prosecutor to show video footage of
his arrest and comment on his demeanor. Finding no reversible
error, we affirm.
Cornwell first contends that there was insufficient
evidence to support his convictions and that the district court
should have granted his motion for acquittal. We review a
district court’s denial of a Fed. R. Crim. P. 29 motion for
acquittal de novo. United States v. Reid, 523 F.3d 310, 317
(4th Cir. 2008). “A defendant challenging the sufficiency of
the evidence to support his conviction bears a heavy burden.”
United States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997)
(internal quotation marks omitted). We will uphold a jury’s
verdict “if, viewing the evidence in the light most favorable to
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the government, it is supported by substantial evidence.” Reid,
523 F.3d at 317. Substantial 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.” United States v. Alerre, 430 F.3d 681, 693
(4th Cir. 2005) (internal quotation marks omitted). In
resolving issues of substantial evidence, we do not reweigh the
evidence or reassess the factfinder’s determination of witness
credibility, see United States v. Brooks, 524 F.3d 549, 563 (4th
Cir. 2008), and “can reverse a conviction on insufficiency
grounds only when the prosecution’s failure is clear.” United
States v. Moye, 454 F.3d 390, 394 (4th Cir. 2006) (en banc)
(internal quotation marks omitted).
To prove the conspiracy charged in Counts One and
Four, the Government was required to establish: “(1) an
agreement to possess with intent to distribute cocaine base
existed between two or more persons; (2) [Cornwell] knew of the
conspiracy; and (3) [Cornwell] knowingly and voluntarily became
part of the conspiracy.” Reid, 523 F.3d at 317. Evidence of a
buy-sell transaction involving a substantial quantity of drugs,
repeated transactions, and continuing relationships can support
a finding of a conspiracy. Id. (citing United States v. Burgos,
94 F.3d 849, 857 (4th Cir. 1996); United States v. Mills, 995
F.2d 480, 485 n.1 (4th Cir. 1993)). “[T]he testimony of a
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defendant’s accomplices, standing alone and uncorroborated, can
provide an adequate basis for conviction.” United States v.
Burns, 990 F.2d 1426, 1439 (4th Cir. 1993). To prove possession
with the intent to distribute, the Government was required to
prove “(1) possession of the controlled substance; (2) knowledge
of the possession; and (3) intent to distribute.” See United
States v. Hall, 551 F.3d 257, 267 n.10 (4th Cir. 2009).
Cornwell was arrested while participating in a cocaine
transaction with a confidential informant to whom he had sold
cocaine several times. The jury heard testimony from several of
Cornwell’s accomplices that he engaged in repeated cocaine
transactions, was owed large sums of money, and patterned his
sales similarly to the incident leading to his arrest.
Additionally, evidence of cocaine residue was found in
Cornwell’s personal business. We hold that this evidence was
sufficient to support the jury’s verdict.
Cornwell next argues that the district court violated
his Sixth Amendment rights when it sentenced him based on a
higher drug quantity than found by the jury. We review legal
questions that arise from the imposition of a sentence de novo.
United States v. Caplinger, 339 F.3d 226, 235 (4th Cir. 2003).
A judge does not violate the Sixth Amendment by finding facts
during sentencing. United States v. Benkahla, 530 F.3d 300, 312
(4th Cir. 2008). “Sentencing judges may find facts relevant to
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determining a Guidelines range by a preponderance of the
evidence, so long as the Guidelines sentence is treated as
advisory and falls within the statutory maximum authorized by
the jury’s verdict.” Id.
Here, the district court did not err in finding
Cornwell responsible for a larger volume of cocaine by a
preponderance of the evidence. Moreover, Cornwell’s 180-month
sentence for his drug offenses was within the statutory maximum,
see 21 U.S.C. § 841(b)(1)(B), and there is no indication in the
record that the district court considered the Guidelines to be
mandatory. Accordingly, we hold that Cornwell’s Sixth Amendment
rights were not violated.
Lastly, Cornwell argues that the district court
violated his Fifth Amendment rights when it admitted video
footage of his silence when he was arrested and allowed counsel
for the Government to comment on it during closing argument.
Because Cornwell did not object to the videotape or comments at
trial, his claim is reviewed for plain error. See United
States v. Olano, 507 U.S. 725, 731 (1993). Thus, we will affirm
the district court’s judgment unless there is error that is
plain and affects Cornwell’s substantial rights. Fed. R. Crim.
P. 52(b).
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Evidence that a defendant remained silent at the time
of arrest but before receiving Miranda * warnings is admissible at
trial. United States v. Love, 767 F.2d 1052, 1063 (4th Cir.
1985). Because Cornwell had not received Miranda warnings at
the time the video was recorded, we hold that the district court
did not violate Cornwell’s Fifth Amendment rights by allowing
the prosecution to show the video and comment on it.
Accordingly, we affirm the district court’s judgment.
Consequently, we deny Cornwell’s motions to file a pro se
supplemental brief and to hold the case in abeyance to allow him
to file a pro se reply brief. 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
*
Miranda v. Arizona, 384 U.S. 436 (1966).
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