UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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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