United States v. Demetrius Spence

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-4089

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DEMETRIUS SPENCE, a/k/a Meat,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Elizabeth City. James C. Dever
III, Chief District Judge. (2:11-cr-00004-D-1)

Argued: January 29, 2014 Decided: April 16, 2014

Before AGEE, FLOYD, and THACKER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ARGUED: Michael W. Patrick, LAW OFFICE OF MICHAEL W. PATRICK,
Chapel Hill, North Carolina, for Appellant. Shailika K. Shah,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee. ON BRIEF: Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Joshua L. Rogers, Assistant
United States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY,
Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Following a three-day jury trial, Demetrius Spence was

convicted of, and sentenced for, one count of knowingly and

intentionally conspiring to distribute and possess with intent

to distribute cocaine base and three counts of knowingly and

intentionally distributing cocaine base. On appeal, Spence

challenges both his conviction and the procedural reasonableness

of his 324-month sentence. Finding no basis for reversal, we

affirm.

I.

The facts underlying Spence’s prosecution begin in

March 2009, when officers of the Pasquotank County Sheriff’s

Office received information from a confidential informant that

Spence was distributing large quantities of drugs in Elizabeth

City, North Carolina. Armed with information about Spence’s

criminal drug activity, officers used a confidential informant

to conduct three controlled purchases of cocaine base from

Spence. The confidential informant, Deroca Johnson, wore an

audio-recording device and transmitter during each of the

controlled purchases. Agent Jay Winslow, a narcotics

investigator with the Pasquotank County Sheriff’s Office,

conducted visual surveillance of the controlled buys and

monitored the transactions through the audio transmitter.

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After the third controlled transaction, officers arrested Spence

and charged him with one count of knowingly and intentionally

conspiring to distribute and possess with intent to distribute

280 grams or more of cocaine base, in violation of 21 U.S.C.

§§ 841(a)(1), 846, and three counts of knowingly and

intentionally distributing a quantity of cocaine base, in

violation of 21 U.S.C. § 841(a)(1).

At trial, over defense counsel’s objection, the government

played four audio recordings that captured conversations during

which Spence made inculpatory statements. Three of the recorded

conversations were of the controlled purchases between Spence

and Johnson. The fourth audio recording was of a jailhouse

telephone conversation during which Spence chided his mother for

communicating with law enforcement officers. For each of the

audio recordings, the government provided the jury with

corresponding transcripts. The district court instructed the

jury that the transcripts of the recordings were not evidence

but merely served as an aid. The government also called

multiple cooperating witnesses who testified that Spence sold

thousands of dollars of cocaine or cocaine base over the course

of several years to numerous drug dealers. On the strength of

the inculpatory audio recordings, coupled with testimony from

case agents and cooperating witnesses, the jury convicted Spence

on all counts charged in the indictment.

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 A presentence investigation report (PSR) prepared by a

probation officer calculated Spence’s total offense level as 38,

which, combined with a criminal history category of III, yielded

an advisory Guidelines range of 292 to 365 months’

incarceration. Prior to his sentencing, Spence filed several

objections to the PSR, including objections to the drug weight

and to the inclusion of a 1998 North Carolina cocaine conviction

in his criminal history score. Spence’s counsel reasserted his

objections to the PSR during Spence’s sentencing hearing,

arguing that the PSR impermissibly attributed to Spence a higher

drug quantity than that found by the jury and that the 1998

North Carolina cocaine conviction should not be included in

determining Spence’s criminal history. The district court

overruled Spence’s objections and sentenced him to a total term

of imprisonment of 324 months followed by a five-year term of

supervised release. Spence now appeals, challenging (1) the

admission of the audio recordings from the controlled purchases

and the jailhouse telephone conversation between Spence and his

mother; (2) the district court’s drug quantity determination;

and (3) the inclusion of Spence’s 1998 cocaine conviction as

part of his criminal history. We possess jurisdiction pursuant

to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

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 II.

We first address Spence’s contention that the district

court erred in admitting into evidence the audio recordings of

the three controlled purchases and the jailhouse telephone

conversation with his mother and in permitting the jury to use

corresponding transcripts of the audio recordings. We review

for an abuse of discretion the district court’s decisions to

admit audio recordings into evidence and to allow transcripts to

aid in the presentation of recorded evidence. ∗ See United States

v. Capers, 61 F.3d 1100, 1106-07 (4th Cir. 1995); United States

v. Collazo, 732 F.2d 1200, 1203 (4th Cir. 1984).

∗
Although Spence specifically objected to the foundation
laid by the government for admission of the recording of the
jailhouse telephone conversation with his mother, he failed to
state any specific ground for his objections to the admission of
the recordings of the three controlled purchases. Generally,
when a party fails to “object with that reasonable degree of
specificity which would have adequately apprised the trial court
of the true basis for his objection . . . and would have clearly
stated the specific ground now asserted on appeal,” United
States v. Parodi, 703 F.2d 768, 783 (4th Cir. 1983) (citation
omitted) (internal quotation marks omitted), we review the
district court’s evidentiary ruling for plain error, see Fed. R.
Crim. P. 52(b); United States v. Pratt, 239 F.3d 640, 644 (4th
Cir. 2001). Nevertheless, we elect to apply an abuse-of-
discretion standard with respect to each of Spence’s evidentiary
challenges because the result is the same under either standard
of review. See United States v. Palacios, 677 F.3d 234, 245 &
n.6 (4th Cir. 2012) (assuming that defendant preserved
evidentiary objections where arguments failed under an abuse-of-
discretion standard).

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 The proponent of an audio recording carries the burden of

demonstrating that the recording was sufficiently authentic to

be admitted into evidence. United States v. Wilson, 115 F.3d

1185, 1188-89 (4th Cir. 1997). Under Federal Rule of Evidence

901(a), the requirement for authentication is satisfied when

there is “evidence sufficient to support a finding that the item

is what the proponent claims it is.” Illustrative examples of

such evidence include (1) testimony by a knowledgeable witness

that “[the audio recording] is what it is claimed to be,” Fed.

R. Evid. 901(b)(1); (2) “[a]n opinion identifying a person’s

voice—whether heard firsthand or through mechanical or

electronic transmission or recording—based on hearing the voice

at any time under circumstances that connect it with the alleged

speaker,” id. at (b)(5); or (3) testimony “describing a process

or system and showing that it produces an accurate result,” id.

at (b)(9). “We have consistently allowed district courts wide

latitude in determining if a proponent of tape recordings had

laid an adequate foundation from which the jury reasonably could

have concluded that the recordings were authentic and,

therefore, properly admitted.” United States v. Branch, 970

F.2d 1368, 1372 (4th Cir. 1992).

Spence maintains that there was an inadequate foundation

for admitting the challenged audio recordings because the

government failed to satisfy the seven-factor approach for the

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admission of audio recordings as enunciated in United States v.

McMillan, 508 F.2d 101 (8th Cir. 1974). This Circuit, however,

has expressly declined to adopt a formulaic standard for the

admissibility of recorded conversations; instead, all that is

required under our precedent is some proof that the audio

recording accurately reflects the conversation in question. See

United States v. Clark, 986 F.2d 65, 68 (4th Cir. 1993)

(observing that “the government [i]s not required to meet each

of the McMillan guidelines”); Branch, 970 F.2d at 1371-72

(holding that audio recordings were adequately authenticated

because the testimony at trial “was sufficient to support a

finding by the jury that the tapes were what the Government

claimed”). Applying this standard leads us to conclude that the

government adduced an adequate foundation for each of the

challenged audio recordings. Agent Winslow testified that he

equipped Johnson with an audio-recording and transmitter device

for each of the controlled purchases and explained how he

recorded and surveilled the drug transactions. Moreover,

Johnson—who was a participant to the controlled purchases and

familiar with Spence’s voice—testified that he knew he was being

recorded, that the compact discs sought to be admitted into

evidence contained the same recordings made during the

controlled purchases, and that he could identify the recordings

and the corresponding transcripts because he previously had

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placed his initials on them. Although Agent Winslow testified

that small portions of Johnson’s conversation with Spence during

the first controlled purchase were omitted from the recording

due to a “short” in the recording device’s microphone,

Agent Winslow’s and Johnson’s proffered testimonies nevertheless

satisfy Rule 901(a)’s low threshold for authentication of the

conversation that was captured during the transaction. See

United States v. Doyon, 194 F.3d 207, 212-13 (1st Cir. 1999)

(“An accurate tape recording of part of a conversation is not

inherently less admissible than the testimony of a witness who

heard only part of a conversation and recounts the part that he

heard.”). In sum, we are unable to conclude that the foundation

the government laid for each of the three controlled-purchase

recordings was “clearly insufficient to insure the accuracy of

the recording[s].” Clark, 986 F.2d at 69 (internal quotation

marks omitted).

As for the audio recording of the jailhouse telephone

conversation between Spence and his mother, Agent Winslow

testified that he was familiar with the voices of Spence and

Spence’s mother, and he identified their voices on the

recording. Further, Raymond Ridley, an employee of the Piedmont

Regional Jail, testified that he produced recordings of the

telephone calls between Spence and his mother, that he had

listened to the recordings, that the compact discs contained the

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full contents of the original discs, and that he had signified

that the recordings were accurate by placing his initials on the

discs. Ridley also provided detailed testimony explaining the

process that he employed to extract the audio recordings from

the jailhouse phone system and that there were no errors with

the system when creating the discs. The testimony of Agent

Winslow and Ridley was more than sufficient to establish that

the audio recordings were what the government claimed them to

be—accurately recorded conversations between Spence and his

mother.

Spence did not object to any specific inaccuracies in the

audio recordings or transcripts at trial, nor did he explore

inaccuracies during cross-examination. See United States v.

Capers, 61 F.3d 1100, 1106-07 (4th Cir. 1995) (rejecting

assignment of error regarding admission of audio recordings and

corresponding transcripts when the defendant had the opportunity

to explore inaccuracies during cross-examination but failed to

do so); Clark, 986 F.2d at 69 (same). Further, the district

court’s limiting instructions to the jury prevented any

prejudice that may have resulted from any discrepancies between

the audio recordings and the transcripts. See United States v.

Pratt, 351 F.3d 131, 140 (4th Cir. 2003). Thus, we conclude

that the district court acted well within its discretion in

finding that each of the challenged audio recordings were

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sufficiently authenticated and that the district court did not

abuse its discretion in allowing the jury to consider the

corresponding transcripts.

Next, Spence argues that the district court erred in

calculating his drug quantity, maintaining that the court

impermissibly attributed to him a higher drug quantity for

sentencing purposes than the amount found by the jury. We can

easily dispense with this argument. This Court has squarely

held that “beyond establishing the maximum sentence, the jury’s

drug-quantity determination place[s] no constraint on the

district court’s authority to find facts relevant to

sentencing.” United States v. Young, 609 F.3d 348, 357 (4th

Cir. 2010). Spence acknowledges that this claim is foreclosed

by circuit precedent and notes that he seeks to preserve the

issue for possible en banc or Supreme Court review. Bound by

Young, we discern no error with the district court’s drug

quantity calculation.

Last, Spence maintains that the district court erred when

it assessed criminal history points for his 1998 North Carolina

conviction for possessing with intent to sell cocaine, which he

contends qualifies as relevant conduct. Had the 1998 conviction

been considered relevant conduct, Spence claims, his criminal

history category would have been reduced from III to II, which

would have yielded an advisory Guidelines range of 262 to 327

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months’ imprisonment. Even assuming, arguendo, that the

district court erred by including the 1998 cocaine conviction as

part of Spence’s criminal history, we conclude that the claimed

error is harmless. See Puckett v. United States, 556 U.S. 129,

141 (2009) (observing that “procedural errors at sentencing

. . . are routinely subject to harmlessness review”).

A procedural sentencing error is harmless when we have

“(1) knowledge that the district court would have reached the

same result even if it had decided the [G]uidelines issue the

other way, and (2) a determination that the sentence would be

reasonable even if the [G]uidelines issue had been decided in

the defendant’s favor.” United States v. Savillon–Matute, 636

F.3d 119, 123 (4th Cir. 2011) (quoting United States v. Keene,

470 F.3d 1347, 1349 (11th Cir. 2006)) (internal quotation marks

omitted). In this case, the district court plainly stated that

it would have imposed the same sentence even if it erroneously

calculated Spence’s Guidelines range. Thus, the first prong of

the harmlessness analysis is satisfied. As for the second

prong, we have little difficulty in concluding that the imposed

sentence is reasonable. Spence’s total 324-month sentence falls

within the purportedly applicable Guidelines range urged by

Spence (262 to 327 months’ incarceration) and, therefore, is

presumed reasonable. See United States v. Allen, 491 F.3d 178,

193 (4th Cir. 2007). The district court conducted a thorough

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analysis of the 18 U.S.C. § 3553(a) sentencing factors,

referring to the prolonged nature of the criminal drug

conspiracy in which Spence was involved, Spence’s extensive

criminal history, and the need to deter others. A sentence at

the high end of Spence’s Guidelines range therefore would have

been justified in light of the seriousness of Spence’s criminal

history, his lack of respect for the law, and his significant

chance of recidivism. Spence has failed to show that his 324-

month sentence is unreasonable given the record and the

§ 3553(a) factors.

III.

For the foregoing reasons, we affirm the judgment of the

district court.

AFFIRMED

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