UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4212
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
STANLEY D. PARTMAN, a/k/a Goat,
Defendant – Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Joseph F. Anderson, Jr., District
Judge. (3:11-cr-02063-JFA-10)
Argued: March 19, 2014 Decided: April 23, 2014
Before DUNCAN, WYNN, and DIAZ, Circuit Judges.
Affirmed by unpublished opinion. Judge Duncan wrote the
opinion, in which Judge Wynn and Judge Diaz joined.
ARGUED: Casper Fredric Marcinak, III, SMITH MOORE LEATHERWOOD,
LLP, Greenville, South Carolina, for Appellant. Robert Frank
Daley, Jr., OFFICE OF THE UNITED STATES ATTORNEY, Columbia,
South Carolina, for Appellee. ON BRIEF: William N. Nettles,
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
DUNCAN, Circuit Judge:
Appellant Stanley Partman appeals the district court’s
denial of his motion for judgment of acquittal, denial of his
motion for a new trial, and application of a two-level
obstruction of justice sentencing enhancement. For the reasons
that follow, we affirm.
I.
From 1996 to 2011, Partman supplied and distributed cocaine
and crack cocaine as a member of a drug trafficking conspiracy
operating out of Columbia, South Carolina. During this
conspiracy, Partman’s coconspirators included, among others,
Donnay Rickard, Rondeal Woods, and Anthony Thompson. In March
of 2011, the FBI obtained a wiretap for Rickard’s cellular
telephone that produced recordings of numerous phone calls among
Rickard, Partman, and their coconspirators. The recordings
include Partman’s statements to Rickard that he possessed a
firearm and intended to kill Woods for selling bad cocaine. In
August of 2011, Partman was indicted for several violations of
the Controlled Substances Act, 21 U.S.C. §§ 801, et seq., 1 and
possession of a firearm in furtherance of a drug trafficking
1
Partman challenges his convictions under 21 U.S.C. §§ 841,
843, and 846 and 18 U.S.C. § 2 only indirectly through his
appeal of the denial of his motion for a new trial.
2
crime in violation of 18 U.S.C. § 924(c). Partman’s case
proceeded to trial on five counts. We recount the relevant
portions of the trial below.
A.
At jury selection, Partman appeared before the potential
jurors in a collared button-down shirt provided by his attorney
and slippers and red pants issued by his detention center.
Partman did not object to his attire or request that other
civilian clothing be provided at that time. However, nearly a
month later, just before trial, Partman sought to disqualify the
jury, alleging that the jurors could not be impartial as a
result of his appearance before them in prison attire. After
interviewing the jury, the district court dismissed two jurors
who recalled Partman’s jury selection attire with specificity.
Juror 129 remembered Partman’s “orange or reddish” jumpsuit,
J.A. 140, and Juror 132 remembered his “court issued or
correctional issued” pants, J.A. 147. A third juror, number
211, had no affirmative recollection and in response to the
court’s question asked “[w]as it something orange maybe?” J.A.
142. Partman argued that the third juror should also be
dismissed, and that because there were no remaining alternates,
the jury should be disqualified. The district court denied
Partman’s motion.
3
To support its 18 U.S.C. § 924(c) charge at trial, the
government sought to establish that Partman had attempted to
shoot Woods for selling him bad cocaine in March of 2011. The
government presented Partman’s admission that he possessed two
firearms during the relevant period, the testimony of multiple
witnesses that Partman had threatened to kill Woods, a witness’s
testimony that someone matching Partman’s description had
entered Woods’s barbershop looking for Woods, and wiretap
recordings in which Partman stated that he was in possession of
a firearm and was attempting to find and kill Woods. The
government did not submit any evidence that a firearm belonging
to Partman had been recovered or that any witness had actually
seen Partman with a firearm during the relevant period. On the
basis of this evidence, the jury found beyond a reasonable doubt
that Partman possessed a firearm in furtherance of drug
trafficking activities.
During the course of the trial, Partman, who did not take
the stand, spoke directly to the jury in open court. After the
jurors were sworn, Partman interjected “I do not want this guy
to represent me because he said...it would not be in my best
interest. And he says he’s not going to represent me fully
because he’s not getting paid enough because the [c]ourt
appointed him.” J.A. 156. The district court reprimanded
Partman and explained to him several times that he was not
4
permitted to address the jury or otherwise interrupt the
proceedings. However, Partman subsequently spoke to the jury
again, stating “Jury they won’t let me tell you what I want to -
- in this case--.” J.A. 680. As a result of his outbursts, the
district court removed Partman from the courtroom for the
remainder of the trial. J.A. 692. The jury convicted Partman
on all counts.
B.
After his conviction, a probation officer attempted to
interview Partman to prepare the pre-sentence report. Partman
was nonresponsive, and the parties requested that Dr. Thomas
Martin, the forensic psychiatrist who had examined Partman
before trial, reassess his competency. Partman refused to
cooperate with Dr. Martin’s evaluation. As a result, Dr. Martin
testified at sentencing that he relied on an interview with one
of Partman’s correctional officers and recordings of Partman’s
prison telephone calls to assess his competency. Dr. Martin
concluded that Partman was competent. On the basis of Partman’s
in-court disruptions and noncompliance during the post-
conviction process, the district court imposed a two-level
enhancement for obstruction of justice.
Partman was sentenced to a total of 396 months’
imprisonment. He timely appealed.
5
II.
“We review the district court's denial of a motion for a
new trial under an abuse of discretion standard.” United States
v. Wilson, 624 F.3d 640, 660 (4th Cir. 2010). The district
court “should exercise its discretion to award a new trial
sparingly, and a jury verdict is not to be overturned except in
the rare circumstance when the evidence weighs heavily against
it.” United States v. Smith, 451 F.3d 209, 217 (4th Cir. 2006)
(internal quotation marks and citations omitted).
“We review challenges to the sufficiency of evidence de
novo.” United States v. Kelly, 510 F.3d 433, 440 (4th Cir.
2007). We must find that the “evidence adequately supports a
conviction if, viewing it in the light most favorable to the
prosecution, ‘any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.’”
United States v. Abu Ali, 528 F.3d 210, 234 (4th Cir. 2008)
(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
We review criminal sentences for reasonableness using an
abuse of discretion standard. Gall v. United States, 552 U.S.
38, 51 (2007). We review the district court’s factual findings
for clear error and its legal conclusions de novo. United
States v. Strieper, 666 F.3d 288, 292 (4th Cir. 2012). “A
district court abuses its discretion when it acts arbitrarily or
irrationally, fails to consider judicially recognized factors
6
constraining its exercise of discretion, relies on erroneous
factual or legal premises, or commits an error of law.” United
States v. Delfino, 510 F.3d 468, 470 (4th Cir. 2007).
III.
On appeal, Partman contends that a new trial was required
because his appearance in prison-issued clothing prejudiced the
jury, acquittal was required because there was insufficient
evidence to support his 18 U.S.C. § 924(c) conviction, and that
the sentencing enhancement was unwarranted because his
noncompliance and in-court disruptions did not rise to the level
of obstruction of justice. We consider each issue in turn.
A.
We first address Partman’s appeal of the district court’s
denial of his motion for a new trial. Partman argues that his
Fourteenth Amendment right to a fair trial was violated because
the jury was not disqualified after he appeared before it in
detention center-issued clothing. Partman contends that one
juror who remembered his attire was improperly allowed to remain
after the district court questioned the jury members about their
recollections and excused two other jurors. The government
contends that Partman waived his right to have the jury
disqualified because he waited for nearly a month after jury
selection, until the eve of trial, to make his motion. It
7
argues in the alternative that if the issue was preserved,
Partman failed to show actual prejudice resulting from his
appearance in prison-issued clothing.
The district court did not abuse its discretion by denying
Partman’s motion for a new trial because as a matter of law it
did not err by impaneling the jury. In fact, the district court
went above and beyond what was required of it to secure
Partman’s right to a fair trial. The “particular evil
proscribed” by Estelle v. Williams, 425 U.S. 501 (1976), the
controlling Supreme Court precedent, is “compelling a defendant,
against his will, to be tried in jail attire.” Id. at 508.
When a defendant is represented by counsel, the burden is on the
defendant, not the court, to raise an objection to the
defendant’s attire. See id. at 511-12.
Therefore, contrary to Partman’s contention, the relevant
inquiry is not whether the defendant was seen by potential
jurors in prison clothing, but instead, whether he was required
by the government to appear in prison clothing. In this case,
it is clear on the face of the record that there was no such
compulsion. Partman was permitted to wear a civilian shirt
provided by his attorney to jury selection. There is no
8
evidence in the record, nor does Partman contend in his briefs, 2
that he would not have been permitted to wear other pants and
shoes as well had he requested them or had his attorney provided
them. Furthermore, Partman did not object to the fact that he
was wearing prison issued clothing prior to appearing before the
potential jury. The district court was under no obligation to
determine if this was an intentional choice, mere indifference,
or lack of preparation.
Because neither the government nor the district court was
responsible for the fact that Partman appeared before the jury
in prison attire, the district court did not err by refusing to
disqualify the jury and did not abuse its discretion by denying
Partman’s motion for a new trial.
B.
We turn next to Partman’s appeal of the denial of his
motion for judgment of acquittal. Partman argues that the
evidence presented to the jury was insufficient as a matter of
law to support a conviction under 18 U.S.C. § 924(c) because
there was no indication that he possessed a firearm in a manner
2
Partman states in both his Opening and Reply briefs that
he appeared at jury selection in prison clothes “through no
fault of his own.” Appellant’s Br. 12; Reply Br. 6. However,
he does not claim that he was instructed to wear his detention
center jumpsuit or that he requested other clothing, and the
district court was not obligated to take action on his behalf to
secure other clothing.
9
that furthered any illegal activity. He contends that no
evidence established his possession during any particular event,
and that no evidence was offered to establish any of the factors
identified in United States v. Lomax, 293 F.3d 701 (4th Cir.
2002).
The government contends that it presented sufficient
evidence to allow the jury to conclude that Partman possessed a
semiautomatic weapon that he intended to, and in at least one
case attempted to, use to threaten or kill his coconspirator
Woods. It argues that this possession was established at trial
by Partman’s admissions and corroborated by witness testimony. 3
To convict under the possession prong of § 924(c), the jury
must find beyond a reasonable doubt that the defendant (1)
possessed a firearm, and (2) that the possession was in
furtherance of a drug crime or other crime of violence. United
States v. Jeffers, 570 F.3d 557, 565 (4th Cir. 2009). To prove
that a firearm was possessed in furtherance of a drug crime, the
government must “present evidence indicating that the possession
3
Partman states in his Opening Brief that the audiotapes
containing his purported admissions were “questionable.”
Appellant’s Br. 8. He does not, however, elaborate on this
assertion or argue that his conviction should be overturned on
the basis of improperly admitted evidence. Any argument Partman
could have made to exclude the audiotape evidence is therefore
waived. IGEN Int’l, Inc. v. Roche Diagnostics GmbH, 335 F.3d
303, 308 (4th Cir. 2003); see also Fed. R. App. P. 28(a)(8)(A).
10
of a firearm furthered, advanced, or helped forward a drug
trafficking crime.” Lomax, 293 F.3d at 705. When making this
determination:
the fact finder is free to consider the numerous ways
in which a firearm might further or advance drug
trafficking. For example, a gun could provide a
defense against someone trying to steal drugs or drug
profits, or it might lessen the chance that a robbery
would even be attempted. Additionally, a gun might
enable a drug trafficker to ensure that he collects
during a drug deal. And a gun could serve as
protection in the event that a deal turns sour. Or it
might prevent a transaction from turning sour in the
first place. Furthermore, a firearm could help a drug
trafficker defend his turf by deterring others from
operating in the same area.
Id. Whether a firearm “served such a purpose is ultimately a
factual question.” Id. When making that determination, the
jury may “consider both circumstantial as well as direct
evidence, and a conviction may rely entirely on circumstantial
evidence.” United States v. Bonner, 648 F.3d 209, 213 (4th Cir.
2011). Furthermore, “a firearm need not be seized to sustain a
§ 924(c) conviction.” Jeffers, 570 F.3d at 566 n.6.
The basis for Partman’s conviction is unusual because no
firearm was recovered and no witness testified to seeing Partman
with a firearm in any relevant instance. However, under the
particular facts of this case and our highly deferential
sufficiency-of-the-evidence standard, we are constrained to
conclude that the jury’s verdict was proper.
11
As an initial matter, Partman’s contention that the proof
was insufficient because the government was unable to adduce
evidence related to several of the factors articulated in Lomax
is meritless. In Lomax, we stated that among the factors the
jury might find helpful in determining whether the in
furtherance requirement has been satisfied are:
[T]he type of drug activity that is being conducted,
accessibility of the firearm, the type of weapon,
whether the weapon is stolen, the status of the
possession (legitimate or illegal), whether the gun is
loaded, proximity to drugs or drug profits, and the
time and circumstances under which the gun is found.
293 F.3d at 705 (quoting United States v. Ceballos-Torres, 218
F.3d 409, 414-15 (5th Cir. 2000)). Partman argues that his
conviction cannot stand because no evidence was presented to
establish where or when his firearm was found or what condition
it was in (easily accessible, loaded, illegally possessed,
etc.). 4 It is clear, however, that these factors can only
reasonably be considered when a firearm is seized, and as we
held in Jeffers, a possession conviction can be sustained even
if no firearm is recovered.
As discussed below, Partman’s conviction does not rely in
any way on seizure or physical evidence of a firearm, and
4
Partman also asserts that there was no evidence of the
type of drug activity being conducted, but this is clearly
meritless in light of the overwhelming evidence of cocaine
trafficking in the record.
12
accordingly the physical attributes of the firearm the jury
concluded Partman possessed are simply irrelevant. Lomax
accounts for the possibility that the factors it recites might
not be applicable to a particular case. We explicitly stated in
Lomax that “there are many factors that might lead a fact finder
to conclude” that a defendant’s possession of a firearm was
connected to his drug trafficking activity and that those
factors “may include, but are not limited to” those stated in
the opinion. 293 F.3d at 705. In light of the flexibility of
the standard and the irrelevance of the particular facts that
Partman claims are necessary, the government’s failure to prove
them to the jury cannot invalidate Partman’s conviction.
More generally, there is substantial evidence in the record
before us to allow a rational juror to conclude that Partman’s
conduct violated § 924(c) on these facts. At trial, the
government presented Partman’s admission that he possessed two
firearms in March of 2011 and that he was engaged in drug
trafficking activities. J.A. 558-61. It also presented
recordings of several phone calls in which Partman admitted that
he was currently in possession of a firearm and was attempting
to locate Woods in order to shoot him as a result of a bad drug
13
transaction. J.A. 263-64 5; 265 6; 268 7. Several witnesses,
including Rickard and Thompson, testified that Partman had
admitted to possessing a firearm and had repeatedly threatened
to shoot Woods because of Woods’s sale of bad cocaine.
Because Partman does not challenge the authenticity or
admissibility of the recorded evidence or witness testimony on
appeal, his sufficiency argument is more accurately understood
as a claim that the jury should have adopted his interpretation
of the facts instead of the government’s version. He argues
that the evidence actually supports his claim that he never
brought a firearm into Woods’s barbershop 8 and that his recorded
statements to his coconspirators were mere puffery. Even
assuming that Partman’s explanation is plausible, “if the
5
“I told him I’d come catch him at the barbershop. I’m
going to do him. Chopper is in the truck right now. Looking
for him. I rode by the barbershop again and that MF ain’t
there.”
6
“Whenever I see you, I’m going to shoot that – whenever I
see him, I’m going to shoot him, period.”
7
“I’m gonna shoot that boy if I see him. I done got my
chopper in the truck with me right now.”
8
We note that the parties’ focus on whether Partman
actually brought a firearm into Woods’s barbershop is misplaced.
Partman was convicted under the possession prong of 924(c), not
the use or carrying prong. As described above, under Lomax, the
contours of the in furtherance requirement for possession are
broad. While an actual armed confrontation or attempted
confrontation would be sufficient to satisfy this prong, it is
not necessary.
14
evidence supports different, reasonable interpretations, the
jury decides which interpretation to believe,” and we are not
entitled to reweigh that evidence. United States v. Murphy, 35
F.3d 143, 148 (4th Cir. 1994). The jury was clearly entitled to
credit the testimony of the coconspirator witnesses and
Partman’s own admissions if it found them to be convincing. See
Bonner, 648 F.3d at 213 (“In assessing the evidence, the jury's
resolution of all evidentiary conflicts and credibility
determinations must be given deference.”). It is equally clear
that Partman’s admitted attempt to use a firearm to threaten or
kill a coconspirator for providing bad cocaine to a drug dealing
conspiracy satisfies both the possession and nexus requirements
explained in Lomax.
In sum, given the deference accorded credibility
determinations and viewed in the light most favorable to the
government, we find that the facts here, including Partman’s own
words, provide sufficient evidentiary support for the jury
verdict. We stress the circumstances presented here to indicate
the extent to which we rely on them in the absence of physical
evidence of the firearm itself or direct eyewitness observation
of the violation.
C.
Finally, we turn to Partman’s sentencing claim. Partman
argues that the district court’s application of the obstruction
15
of justice enhancement was procedurally unreasonable because (1)
courts typically only apply the enhancement when cases actually
cannot continue to resolution, (2) his conduct caused only minor
interruptions to the proceedings because his disruptions were
quickly resolved, and (3) the district court did not find that
Partman’s obstructive actions were willful. The government
contends that the enhancement was warranted by the uncontested
facts on the record. It also argues that Partman waived any
objection he might have had to the district court’s reliance on
his malingering and feigned incompetence to support the
enhancement because he failed to raise that argument in his
opening brief. Finally, the government contends that if there
was any error it was harmless because the district court
explicitly stated that it would have given Partman the same
sentence if the enhancement had not applied. Neither party
challenges the substantive reasonableness of the sentence. 9
We need not decide on the merits of Partman’s objections to
dispose of this issue. As the government indicates,
“‘procedural errors at sentencing...are routinely subject to
harmlessness review’” and we “may assume that a sentencing error
9
Although Partman argues in his Reply brief that the
sentence was substantively unreasonable, he waived this argument
by failing to raise it in his opening brief. See IGEN Int’l,
335 F.3d at 308 (4th Cir. 2003); Fed. R. App. P. 28(a)(8)(A).
16
occurred and proceed to examine whether the error affected the
sentence imposed.” United States v. Hargrove, 701 F.3d 156, 161
(4th Cir. 2012) (quoting Puckett v. United States, 556 U.S. 129,
141 (2009)). A sentencing error is harmless “if the resulting
sentence was not longer than that to which [the defendant] would
otherwise be subject.” United States v. Mehta, 594 F.3d 277,
283 (4th Cir. 2010). Assuming error in certain cases allows us
“to avoid the ‘empty formality’ of an unnecessary remand where
it is clear that an asserted guideline miscalculation did not
affect the ultimate sentence.” Hargrove, 701 F.3d at 163.
The “assumed error harmlessness inquiry ‘requires (1)
knowledge that the district court would have reached the same
result even if it had decided the guidelines issue the other
way, and (2) a determination that the sentence would be
reasonable even if the guidelines issue had been decided in the
defendant’s favor.’” Id. at 162 (quoting United States v.
Savillon-Matute, 636 F.3d 119, 123 (4th Cir. 2011)) (internal
quotation marks and citations omitted). An explicit statement
that the district court would have applied the same sentence
absent a particular sentencing enhancement is not required to
satisfy the first step of this analysis, but in this case the
district court provided exactly that. At sentencing, the
district court stated that “[f]or all these reasons, as well as
those I have outlined previously, I find that the sentence
17
imposed in this case, 396 months, is the correct sentence even
if the obstruction of justice enhancement had not been imposed
in the case.” 10 J.A. 767. An explicit statement by the district
court satisfies the first step of the inquiry and renders the
substantive reasonableness of the sentence dispositive. See
Hargrove, 701 F.3d at 163.
The district court sentenced Partman to a term of
imprisonment of 396 months, based on a criminal history category
of II, a total offense level of 40, including the two-level
obstruction enhancement, and the 60 month consecutive sentence
mandated by Partman’s 18 U.S.C. § 924(c) conviction. The
guideline range for an offense level of 38 and a criminal
history category of II is 262 to 327 months. With the addition
of the mandatory 60 month sentence, but without the two-level
enhancement, the highest within-guidelines sentence that the
district court could have imposed on Partman is 387 months, 9
months less than the sentence actually imposed.
“In reviewing any sentence, ‘whether inside, just outside,
or significantly outside the Guidelines range,’ we apply a
10
The district court’s reasons as recounted at sentencing
were the particular egregiousness of the drug trafficking
activities, including the 14 year duration of the conspiracy,
the significant volume of drugs, Partman’s possession of
firearms, and his use of those firearms to threaten people in
the course of his drug trafficking. J.A. 766-67.
18
‘deferential abuse-of-discretion standard.’” Savillon-Matute,
636 F.3d at 122 (quoting Gall, 552 U.S. at 41). We are entitled
to presume that a correctly calculated within-guidelines
sentence is reasonable on appeal. United States v. Mendoza-
Mendoza, 597 F.3d 212, 216 (4th Cir. 2010). However, when a
sentence exceeds the guidelines range, we “may consider the
extent of the deviation [from the guidelines range], but must
give due deference to the district court’s decision that the §
3553(a) factors on a whole, justify the extent of the variance.”
Hargrove, 701 F.3d at 163-64 (quoting Gall, 552 U.S. at 51).
A finding of substantive reasonableness is warranted when
the “record reflects that the district court conducted a
thorough individualized assessment of [the defendant] and his
offense conduct in light of the [3553(a)] factors.” Id. at 164.
In this case it is clear that the district court undertook such
an assessment, finding that Partman’s conduct, including his
dealing over 50 kilograms of cocaine and crack, engaging in a
high-speed chase with the police, and using a semi-automatic
weapon in connection with his drug trafficking warranted an
elevated sentence. The court also considered Partman’s minimal
criminal history, difficult upbringing, and the need to avoid
sentencing disparities with codefendants as possible mitigating
factors. Finally it considered Partman’s lack of remorse or
acceptance of responsibility. See generally 18 U.S.C. §
19
3553(a). Considering the district court’s thorough analysis,
the small degree of the variance from the guidelines range, and
the fact that neither party challenged the substantive
reasonableness of the sentence, Partman’s sentence satisfies the
second prong of the Savillon-Matute analysis.
On the record before us, even assuming that the application
of the obstruction of justice enhancement was erroneous, we
conclude that the error was harmless and the district court did
not abuse its discretion by sentencing Partman to 396 months’
imprisonment.
IV.
For the foregoing reasons, the district court’s denial of
Partman’s motion for a new trial, denial of Partman’s motion for
judgment of acquittal, and application of a two-level
enhancement for obstruction of justice are
AFFIRMED.
20