United States v. Charles Haines, III

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-4612

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

CHARLES PAGE HAINES, III,

Defendant - Appellant.

Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. Gina M. Groh,
District Judge. (3:12-cr-00057-GMG-DJJ-3)

Submitted: August 27, 2014 Decided: August 29, 2014

Before GREGORY and WYNN, Circuit Judges, and DAVIS, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

Scott C. Brown, SCOTT C. BROWN LAW OFFICE, Wheeling, West
Virginia, for Appellant. Zelda E. Wesley, Assistant United
States Attorney, Clarksburg, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Charles Page Haines was sentenced to ninety-two months

of imprisonment following his conviction by a jury of conspiracy

to distribute twenty-eight grams or less of cocaine base, three

counts of distributing cocaine base, distributing heroin, and

maintaining a drug-involved premises, in violation of 21 U.S.C.

§§ 841(a), 846, 856 (2012). On appeal, Haines claims that the

district court erred in admitting evidence of his prior

narcotics distribution under Fed. R. Evid. 404(b) and improperly

enhanced his offense level under U.S. Sentencing Guidelines

Manual (“USSG”) § 2D1.1(b)(12) (2012). We affirm.

Evidence of prior bad acts may be admitted as proof of

“motive, opportunity, intent, preparation, plan, knowledge,

identity, absence of mistake, or lack of accident” but “not

. . . to prove a person’s character in order to show that on a

particular occasion the person acted in accordance with [his]

character.” Fed. R. Evid. 404(b); see United States v. Wilson,

624 F.3d 640, 651 (4th Cir. 2010). “To be admissible under Rule

404(b), evidence must be (1) relevant to an issue other than

character; (2) necessary; and (3) reliable.” United States v.

Siegel, 536 F.3d 306, 317 (4th Cir. 2008) (internal quotation

marks omitted). Potential Rule 404(b) evidence should be

excluded if its probative value is substantially outweighed by

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its unfair prejudice to the defendant. United States v.

Johnson, 617 F.3d 286, 296-97 (4th Cir. 2010).

Here, there was an adequate connection between Haines’

June 2012 narcotics distribution, which supported his present

convictions, and the challenged Rule 404(b) evidence — namely

Haines’ participation in several controlled buys in early 2010.

See id. Those earlier controlled buys involved Haines

facilitating the sale of substantially the same varieties of

drugs to the same confidential informants in the same geographic

area as his instant offenses. Thus, the 2010 controlled buys

were relevant. See United States v. Branch, 537 F.3d 328, 341-

42 (4th Cir. 2008); United States v. Hodge, 354 F.3d 305, 312

(4th Cir. 2004) (reaching same result under analogous facts).

The evidence of the 2010 controlled buys was also

necessary to the Government’s case. Because Haines squarely

placed his knowledge and intent at issue, evidence of his

repeated, analogous drug transactions was instrumental to the

Government’s case. See United States v. McBride, 676 F.3d 385,

398 (4th Cir. 2012). Finally, the prejudice to Haines resulting

from the admission of the Rule 404(b) evidence did not

substantially outweigh its probative value. Accordingly, the

district court did not abuse its discretion in admitting the

challenged evidence. See United States v. Williams, 740 F.3d

308, 314 (4th Cir. 2014) (stating standard of review).

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Next, Haines claims that the district court’s

application of USSG § 2D1.1(b)(12) constituted impermissible

double counting in light of his conviction under 21 U.S.C.

§ 856. We review this claim for plain error. See Puckett v.

United States, 556 U.S. 129, 134-36 (2009) (discussing

standard). We conclude that the district court did not err —

plainly or otherwise — because the Guidelines do not proscribe

applying § 2D1.1(b)(12) where a defendant is convicted under

§ 856. See USSG § 2D1.1 cmt. n.17; see United States v.

Hampton, 628 F.3d 654, 664 (4th Cir. 2010) (“[T]here is a

presumption that double counting is proper where not expressly

prohibited by the guidelines.”).

Finally, Haines contends that the district court

clearly erred in finding that narcotics distribution was a

primary purpose for which he maintained his residence. See

United States v. Manigan, 592 F.3d 621, 626 (4th Cir. 2010)

(stating standard of review). However, “[m]anufacturing or

distributing a controlled substance need not be the sole purpose

for which the premises was maintained, but must be one of the

defendant’s primary or principal uses for the premises.” USSG

§ 2D1.1 cmt. n.17. We conclude that the evidence before the

district court was clearly sufficient to support its application

of § 2D1.1(b)(12) despite the fact that Haines had lived in his

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home his entire life. See United States v. Miller, 698 F.3d

699, 706-07 (8th Cir. 2012).

Accordingly, we affirm the district court’s judgment.

We dispense with oral argument because the facts and legal

conclusions are adequately presented in the materials before

this court and argument would not aid in the decisional process.

AFFIRMED