United States v. Nichols

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 08-4739

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

NYRON JOEL NICHOLS,

Defendant - Appellant.

Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. Glen E. Conrad, Chief
District Judge. (7:07-cr-00006-gec-1)

Submitted: April 15, 2011 Decided: May 20, 2011

Before WILKINSON, NIEMEYER, and AGEE, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Michael T. Hemenway, THE LAW OFFICES OF MICHAEL T. HEMENWAY,
Charlottesville, Virginia, for Appellant. Timothy J. Heaphy,
United States Attorney, R. Andrew Bassford, Assistant United
States Attorney, Roanoke, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Nyron Joel Nichols was convicted by a jury of

conspiracy to possess with intent to distribute fifty grams or

more of cocaine base, and a measurable quantity of cocaine

powder, in violation of 21 U.S.C. §§ 841(a)(1), 846 (2006),

three counts of distributing a measurable quantity of cocaine

powder, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C), and

possessing a firearm in furtherance of a drug trafficking

offense and/or using or carrying a firearm during and in

relation to a drug trafficking crime, in violation of 18 U.S.C.

§ 924(c)(1)(A) (2006). The district court imposed a life

sentence on the offenses involving cocaine base, with concurrent

240-month sentences on the offenses involving cocaine powder,

and a consecutive sixty-month sentence on the firearm offense.

We affirm.

On appeal, Nichols first contends that the indictment

was defective. Our review of the record leads us to conclude

that Nichols’ claim is without merit, and in any event, because

Nichols failed to assert this claim before trial, it is waived.

Fed. R. Crim. P. 12(b)(3), (e).

Nichols next contends that the district court’s

forfeiture order was improperly entered because none of the

offenses of conviction were forfeiture related, and the jury did

not decide the forfeiture issue. A defendant who is convicted

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of a drug trafficking offense shall forfeit property obtained as

a result of the offense. 21 U.S.C. § 853 (a)(1); United States

v. McHan, 345 F.3d 262, 267-68 (4th Cir. 2003). Moreover,

although a defendant has a right to have a jury decide a

forfeiture issue, the defendant must affirmatively assert that

right. Fed. R. Crim. P. 32.2(b)(5). After reviewing the

record, we conclude that Nichols was convicted of an offense

requiring forfeiture of property obtained in connection with

that offense, and waived his right to have a jury decide the

forfeiture issue.

Next, Nichols challenges the sufficiency of the

evidence supporting his convictions. We review de novo a

district court’s denial of a Fed. R. Crim. P. 29 motion for a

judgment of acquittal. United States v. Green, 599 F.3d 360,

367 (4th Cir.), cert. denied, 131 S. Ct. 271 (2010). A

defendant challenging the sufficiency of the evidence “bears a

heavy burden.” United States v. Beidler, 110 F.3d 1064, 1067

(4th Cir. 1997). A jury verdict must be sustained “if, viewing

the evidence in the light most favorable to the prosecution, the

verdict is supported by ‘substantial evidence.’” United States

v. Smith, 451 F.3d 209, 216 (4th Cir. 2006). 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.” Id. (internal

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quotation marks omitted). “[T]he jury, not the reviewing court,

weighs the credibility of the evidence and resolves any

conflicts in the evidence presented.” Beidler, 110 F.3d at 1067

(internal quotation marks omitted). “Reversal for insufficient

evidence is reserved for the rare case where the prosecution’s

failure is clear.” Id. (internal quotation marks omitted).

To establish Nichols’ guilt under 21 U.S.C. § 846, the

evidence must show that: (1) an agreement to possess and

distribute cocaine powder and cocaine base existed between two

or more people; (2) Nichols knew of the conspiracy; and (3)

Nichols knowingly and voluntarily became a part of the

conspiracy. United States v. Kellam, 568 F.3d 125, 139 (4th

Cir.), cert. denied, 130 S. Ct. 657 (2009). To establish

Nichols’ guilt under 21 U.S.C. § 841(a)(1), the evidence must

show that: (1) Nichols possessed cocaine powder and cocaine

base; (2) he had knowledge that he possessed cocaine powder and

cocaine base; and (3) he intended to distribute the cocaine

powder and cocaine base. United States v. Randall, 171 F.3d

195, 209 (4th Cir. 1999). Our review of the record leads us to

conclude that the evidence overwhelmingly established that

Nichols was guilty beyond a reasonable doubt of the drug

offenses.

To establish Nichols’ guilt under 18 U.S.C. § 924(c),

the evidence must show that Nichols: (i) committed a drug

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trafficking crime; and (ii) possessed a firearm in furtherance

of that crime. 18 U.S.C. § 924(c)(1)(A). As previously noted,

Nichols committed several drug trafficking offenses. However,

whether a firearm furthered, advanced, or helped forward one of

Nichols’ drug trafficking crimes is a question of fact. United

States v. Lomax, 293 F.3d 701, 705 (4th Cir. 2002). After

reviewing the record, we conclude that the evidence likewise

overwhelmingly established that Nichols was guilty beyond a

reasonable doubt of the § 924(c) offense.

Nichols next claims that several items of evidence

were prejudicial and improperly admitted at trial. We review a

district court’s evidentiary rulings for abuse of discretion.

United States v. Blake, 571 F.3d 331, 350 (4th Cir. 2009), cert.

denied, 130 S. Ct. 1104 (2010). A district court abuses its

discretion when its decision to admit evidence was arbitrary and

irrational. United States v. Weaver, 282 F.3d 302, 313 (4th

Cir. 2002). A district court’s evidentiary rulings are subject

to review for harmless error under Fed. R. Crim. P. 52. United

States v. Abu Ali, 528 F.3d 210, 231 (4th Cir. 2008). Evidence

is unfairly prejudicial when “there is a genuine risk that the

emotions of a jury will be excited to irrational behavior, and

this risk is disproportionate to the probative value of the

offered evidence.” United States v. Williams, 445 F.3d 724, 730

(4th Cir. 2006) (internal quotation marks, citation, and

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alteration omitted). Our review of the record leads us to

conclude that the district court did not abuse its discretion in

admitting the challenged evidence.

Nichols next claims that the Government committed

prosecutorial misconduct in offering perjured testimony. In

support of his claim that the Government’s witnesses perjured

themselves, he points to alleged inconsistencies between the

witnesses’ trial testimony and various other pieces of evidence

in the case. Despite Nichols’ effort to characterize this claim

as one of prosecutorial misconduct, it is, at bottom, nothing

more than an attack on the credibility of the Government’s

witnesses. By convicting Nichols, however, the jury found that

the Government’s witnesses were credible, and we do not review

the jury’s credibility determinations on appeal. United States

v. Wilson, 484 F.3d 267, 283 (4th Cir. 2007).

Nichols next claims that the incarcerated witnesses

that testified at his trial were all kept in the same holding

cell at the courthouse, thereby giving them the opportunity to

discuss and coordinate their testimony, in violation of the Fed.

R. Evid. 615. Federal Rule of Evidence 615 provides in part that

“[a]t the request of a party the court shall order witnesses

excluded so that they cannot hear the testimony of other

witnesses, and it may make the order of its own motion.” We

conclude that nothing in the rule requires that witnesses be

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separated before or after their testimony. Accordingly, we find

Nichols’ claim without merit.

Nichols next claims that the Government violated his

constitutional rights by failing to turn over witness statements

and other evidence that was allegedly exculpatory in nature. To

establish a violation pursuant to Brady v. Maryland, 373 U.S. 83

(1963), a defendant must show that the Government withheld

evidence that was favorable to the defendant and that was

material as to his guilt or innocence. Id. at 87. After

reviewing the record, we conclude that Nichols has not

established that the Government failed to turn over exculpatory

evidence.

Nichols also argues that his sentence is procedurally

and substantively unreasonable. This Court reviews a sentence

for reasonableness, using an abuse of discretion standard of

review. Gall v. United States, 552 U.S. 38, 50 (2007). The

first step in this review requires the court to ensure that the

district court committed no significant procedural error.

United States v. Evans, 526 F.3d 155, 161 (4th Cir. 2008).

Procedural errors include “failing to calculate (or improperly

calculating) the Guidelines range or failing to consider the §

3553(a)factors.” United States v. Carter, 564 F.3d 325, 328

(4th Cir. 2009) (internal quotation marks omitted). The

district court must make an individualized assessment based on

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the facts presented by applying the relevant § 3553(a) factors

to the circumstances of the case. Gall, 552 U.S. at 51. The

court then considers the substantive reasonableness of the

sentence, taking into account the totality of the circumstances.

Id.

Nichols challenges the district court’s determination

of the drug weight attributable to him, and claims that it

considered unreliable evidence in making its determination. A

district court’s finding regarding drug weights is factual in

nature and is therefore reviewed for clear error. United States

v. Fletcher, 74 F.3d 49, 55 (4th Cir. 1996). In conducting this

review, we give due regard to the district court's opportunity

to judge the credibility of witnesses. 18 U.S.C. § 3742(e)

(2006). Credibility determinations therefore receive deference

unless they are without support in the record. United States v.

Brown, 944 F.2d 1377, 1379-80 (7th Cir. 1991). Moreover, a

district court is permitted to consider any relevant and

reliable evidence before it imposes sentence. United States v.

Bowman, 926 F.3d 380, 381 (4th Cir. 1991). After reviewing the

record, we conclude that the district court properly grouped the

drug counts and did not commit clear error in determining the

drug weights attributable to Nichols.

Nichols next challenges the district court’s finding

that he obstructed justice, warranting a two-level enhancement

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to his offense level. We review a district court’s factual

findings, including those that serve as a basis for an

obstruction of justice enhancement under U.S. Sentencing

Guidelines Manual (“USSG”) § 3C1.1, for clear error. United

States v. Kiulin, 360 F.3d 456, 460 (4th Cir. 2004). We review

the district court’s legal interpretation of the Sentencing

Guidelines de novo. United States v. Dawkins, 202 F.3d 211, 214

(4th Cir. 2000).

A two-level enhancement in a defendant’s offense level

is authorized if the defendant attempts to suborn perjury, or

unlawfully influences, or attempts to influence a witness in

connection with a sentencing hearing. USSG § 3C1.1, cmt. n.

4(a), (b). We find that the district court properly determined

that Nichols had obstructed justice, warranting the two-level

enhancement in his offense level.

Nichols next argues that the district court improperly

found that he had a leadership role in the drug conspiracy,

warranting a three-level enhancement to his offense level.

Under USSG § 3B1.1(b), a three-level enhancement is authorized

“[i]f the defendant was a manager or supervisor (but not an

organizer or leader) and the criminal activity involved five or

more participants or was otherwise extensive.” The enhancement

under § 3B1.1(b) is justified if the defendant supervises at

least one person, and the criminal activity involved five or

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more participants. United States v. Bartley, 230 F.3d 667, 673

(4th Cir. 2000). Our review of the record leads us to conclude

that the district court properly applied USSG § 3B1.1(b), and

correctly increased Nichols offense level by three levels.

Accordingly, we conclude that the district court

properly calculated Nichols’ Guidelines range, considered the

parties’ arguments, made an individualized assessment on the

facts presented, and adequately explained the reasons for the

chosen sentence. Thus, Nichols’ sentence was procedurally

reasonable.

Nor was the sentence imposed substantively

unreasonable. A sentence within the properly calculated

Guidelines range is presumptively reasonable. United States v.

Allen, 491 F.3d 178, 193 (4th Cir. 2007). Here, we find that

the district court correctly determined that Nichols’ Guidelines

range was life imprisonment, and that Nichols has failed to

rebut the presumption of reasonableness accorded a sentence

within the Guidelines.

Nichols also claims that the sixty-month sentence for

the § 924(c) offense was improperly imposed because he received

a higher mandatory minimum sentence on a different count of

conviction. Nichols’ argument is foreclosed by the Supreme

Court’s recent decision in Abbott v. United States, 131 S.Ct. 18

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(2010). Finally, Nichols’ argument that twelve jurors were not

present at all times during trial is without merit.

Accordingly, we affirm the district court’s judgment.

We deny Nichols’ motion 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 the

court and argument would not aid the decisional process.

AFFIRMED

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