UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4878
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTOWAN THORNE, a/k/a Smooth,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema,
District Judge. (1:14-cr-00165-LMB-1)
Submitted: June 17, 2015 Decided: June 30, 2015
Before NIEMEYER, KING, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Edwin F. Brooks, EDWIN F. BROOKS, LLC, Richmond, Virginia, for
Appellant. Dana J. Boente, United States Attorney, Michael P.
Ben’Ary, Assistant United States Attorney, Marc J. Birnbaum,
Special Assistant United States Attorney, Alexandria, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Following a bench trial, Antowan Thorne was convicted of
the lesser-included charge of conspiracy to distribute 100 grams
or more of heroin, in violation of 21 U.S.C. §§ 841(a)(1), 846
(2012). The district court sentenced Thorne to 300 months’
imprisonment, which was in the middle of his Sentencing
Guidelines range of 262-327 months. The calculation of this
range was driven by Thorne’s career offender designation. See
U.S. Sentencing Guidelines Manual § 4B1.1 (2014). This appeal
timely followed.
On appeal, Thorne raises four issues for our consideration.
He first challenges the sufficiency of the Government’s evidence
underlying his conviction and takes issue with the district
court’s decision to credit the cooperating witness’s testimony.
Thorne’s next three issues relate to the computation of his
Guidelines range. Specifically, Thorne asserts that one of his
career offender predicates was improperly counted and that the
district court erred in enhancing his base offense level for
possessing a firearm and obstructing justice. For the reasons
that follow, we reject these arguments and affirm the judgment.
I.
Thorne first contends that the district court erred in
denying his Fed. R. Crim. P. 29 motions during and at the
conclusion of trial. We review de novo the denial of a Rule 29
2
motion for a judgment of acquittal. United States v. Strayhorn,
743 F.3d 917, 921 (4th Cir.), cert. denied, 134 S. Ct. 2689
(2014). A defendant challenging the sufficiency of the evidence
faces “a heavy burden.” United States v. McLean, 715 F.3d 129,
137 (4th Cir. 2013) (internal quotation marks omitted). The
verdict must be sustained if “there is substantial evidence in
the record, when viewed in the light most favorable to the
government, to support the conviction.” United States v.
Jaensch, 665 F.3d 83, 93 (4th Cir. 2011) (internal quotation
marks omitted). “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 quotation marks and
alteration omitted). Furthermore, it is the trier-of-fact, “not
the reviewing court, [that] weighs the credibility of the
evidence and resolves any conflicts in the evidence
presented[.]” McLean, 715 F.3d at 137 (internal quotation marks
omitted). “Reversal for insufficient evidence is reserved for
the rare case where the prosecution’s failure is clear.” United
States v. Ashley, 606 F.3d 135, 138 (4th Cir. 2010) (internal
quotation marks omitted).
To convict Thorne of conspiracy to distribute heroin, the
Government had to prove the following essential elements: “(1)
an agreement between two or more persons to engage in conduct
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that violates a federal drug law; (2) the defendant’s knowledge
of the conspiracy; and (3) the defendant’s knowing and voluntary
participation in the conspiracy.” United States v. Green, 599
F.3d 360, 367 (4th Cir. 2010).
With these standards in mind, we conclude that the
Government’s evidence was more than sufficient to support
Thorne’s conviction. The cooperating witness testified that,
during the time period alleged in the indictment, the witness
and Thorne worked together to sell Thorne’s heroin to a broader
array of customers. Thorne was the witness’s primary source for
heroin, and the witness sold between 100 and 150 grams of heroin
obtained from Thorne. Their relationship was based on the
common goal of selling more drugs and thus making more money.
Thorne nonetheless contends that the Government failed to
demonstrate a conspiracy because there was no direct evidence of
an agreement between Thorne and any co-conspirator; none of the
purchasers further sold the heroin they obtained from Thorne;
and there was no testimony establishing profit-sharing. Thorne
contends that the witness was, at the most, simply another
customer of Thorne’s.
Thorne’s arguments fail on this record. Individuals
involved in drug trafficking ventures do not memorialize their
agreements in writing, and we have long recognized that,
“[g]iven the ‘clandestine and covert’ nature of conspiracies,
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the government can prove the existence of a conspiracy by
circumstantial evidence alone.” United States v. Howard, 773
F.3d 519, 525 (4th Cir. 2014). Here, though, the Government had
more than circumstantial evidence; the witness testified,
directly, as to the purpose of joining forces with Thorne and to
obtaining heroin from Thorne for resale. See United States v.
Edmonds, 679 F.3d 169, 174 (4th Cir.) (“[A]ny agreement made in
addition to or beyond the bare buy-sell transaction may be taken
to infer a joint enterprise between the parties beyond the
simple distribution transaction and thereby support a finding of
conspiracy.”), vacated on other grounds, 133 S. Ct. 376 (2012).
Finally, the lack of evidence of profit-sharing is not
dispositive of whether a drug-trafficking conspiracy exists.
Thorne’s attempts to undermine the witness’s credibility
likewise are unsuccessful. The district court, sitting as the
trier-of-fact, was in the best position to weigh the witness’s
credibility and demeanor, and acted well within its bounds in
choosing to credit the witness’s testimony. See United States
v. Crawford, 734 F.3d 339, 343 (4th Cir. 2013) (compiling Fourth
Circuit precedent for the proposition that, “although the fact-
finder can consider a witness’s status as a drug user or
criminal history in assessing his or her credibility, this Court
has not found that these attributes render a witness per se
unreliable”), cert. denied, 134 S. Ct. 1528 (2014). And, as the
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district court noted, the witness’s testimony was corroborated
by testimony from two other witnesses who regularly and
frequently purchased heroin from both Thorne and the witness.
We thus affirm Thorne’s conviction.
II.
Thorne’s primary sentencing argument is that the district
court committed reversible procedural error in its application
of the modified categorical approach in determining his career
offender status. For the reasons that follow, we find any error
in this regard to be harmless and thus affirm Thorne’s career
offender designation.
We review any criminal sentence, “whether inside, just
outside, or significantly outside the Guidelines range,” for
procedural and substantive reasonableness, 1 “under a deferential
abuse-of-discretion standard.” United States v. King, 673 F.3d
274, 283 (4th Cir. 2012); see Gall v. United States, 552 U.S.
38, 46, 51 (2007). In first evaluating procedural
reasonableness, this court considers whether the district court
properly calculated the defendant’s advisory Guidelines range,
gave the parties an opportunity to argue for an appropriate
sentence, considered the 18 U.S.C. § 3553(a) (2012) factors,
1
Thorne does not challenge the substantive reasonableness
of his sentence.
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selected a sentence supported by the record, and sufficiently
explained that sentence. See Gall, 552 U.S. at 51.
A defendant is a career offender if he was at least 18
years old at the time of the instant offense, the instant
offense is a drug felony or crime of violence, and the defendant
has at least two prior felony convictions for drug offenses or
crimes of violence. USSG § 4B1.1(a). A prior conviction
qualifies as a “crime of violence” if the offense is punishable
by more than one year of imprisonment and, as relevant to this
case, “has as an element the use, attempted use, or threatened
use of physical force against the person of another[.]” USSG
§ 4B1.2(a)(1). This court reviews de novo the district court’s
conclusion that a prior conviction qualifies as a crime of
violence. See United States v. Gomez, 690 F.3d 194, 197 (4th
Cir. 2012).
Thorne only contests the viability of his second career
offender predicate, to wit: Thorne’s 2008 guilty plea, in the
Superior Court for the District of Columbia, to conspiracy to
obstruct justice, and resulting 36-month sentence. Thorne pled
guilty to violating D.C. Code § 22-722(a)(2)(A), which provides,
in relevant part:
A person commits the offense of obstruction of justice
if that person:
(2) Knowingly uses intimidating or physical force,
threatens or corruptly persuades another person, or by
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threatening letter or communication, endeavors to
influence, intimidate, or impede a witness or officer
in any official proceeding, with intent to:
(A) Influence, delay, or prevent the truthful
testimony of the person in an official proceeding[.]
In his objection to the use of this predicate, Thorne
argued that this statute of conviction was divisible, under
Descamps v. United States, 133 S. Ct. 2276 (2013), and thus that
the court needed to utilize the modified categorical approach to
determine if Thorne’s conviction qualified as a crime of
violence. Considering only the factual proffer that accompanied
Thorne’s plea agreement in that matter, defense counsel argued
that it did not support a finding that Thorne was convicted of a
crime of violence because it established, at the most, a threat
of harm to an individual made vis-à-vis a third party.
The district court first rejected this argument based on
the factual proffer. But the court went on to buttress this
conclusion by citing the magistrate judge’s report and
recommendation, in Thorne’s unrelated supervised release
revocation proceeding in another federal district court, in
which the magistrate judge recommended finding that this
conviction qualified as a crime of violence under the modified
categorical approach.
On appeal, Thorne claims the district court committed
reversible procedural error in relying on the magistrate judge’s
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recommendation to support its analysis. As we have explained,
the modified categorical approach:
[M]ay be used in cases where the state statute under
which the defendant was previously convicted sets out
one or more elements of the offense in the
alternative, but not where the statute is indivisible.
Moreover, even under the modified categorical
approach, the later court is generally limited to
examining the statutory definition, charging document,
written plea agreement, transcript of plea colloquy,
and any explicit factual finding by the trial judge to
which the defendant assented. The judge may not
consider police reports or complaint applications.
United States v. Flores-Granados, 783 F.3d 487, 491 (4th Cir.
2015) (internal quotation marks and citations omitted). We thus
agree that the district court erred in considering the
magistrate judge’s report in the unrelated revocation case
because this is not a Shepard 2-approved source.
However, this error is rendered harmless by the fact that
the district court announced a perfectly sound basis for the
same finding immediately prior to noting its consideration of
the magistrate judge’s report: that the factual proffer
accompanying the plea agreement established that Thorne’s
2Shepard v. United States, 544 U.S. 13 (2005). As we
recently explained, in assessing a prior guilty plea, Shepard-
approved documents include “the charging document, plea
agreement, plea transcript between the judge and the defendant
in which the factual basis for the plea was confirmed by the
defendant, or to some comparable judicial record of this
information.” United States v. Span, __ F.3d __, 2015 WL
3541800, at *4 (4th Cir. June 8, 2015) (internal quotation marks
omitted).
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conviction was for a crime of violence. Indeed, the agreed-upon
factual proffer clearly established that the threatened use of
physical force against another was an element of Thorne’s
conviction under D.C. Code § 22-722(a)(2)(A) — even if that
threat was not directly communicated to the intended victim.
See USSG § 4B1.2(a)(1).
Significantly, Thorne does not challenge the general
propriety of the district court’s utilization of the modified
categorical approach or reliance on this Shepard-approved
source, and we discern no error in the court’s conclusion based
thereon. We thus affirm the career offender designation despite
the procedural error. See United States v. Savillon–Matute, 636
F.3d 119, 123–24 (4th Cir. 2011) (explaining the harmless error
analysis employed when evaluating claims of procedural
sentencing error).
Our disposition of this issue effectively moots Thorne’s
challenges to the two-level firearm enhancement and the two-
level obstruction of justice adjustment. Because the offense
level established under the career offender Guideline was more
than the offense level calculated using the Guidelines for the
drug offense including any specific offense characteristic or
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adjustment, 3 neither the firearm enhancement nor the obstruction
adjustment affected Thorne’s sentence. Accordingly, we find
these arguments are moot.
For these reasons, we affirm the criminal judgment. We
deny Thorne’s motion to file a pro se supplemental brief in this
counseled appeal. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before this court and argument would not aid the
decisional process.
AFFIRMED
3 Prior to application of the career offender Guideline,
Thorne had an adjusted offense level of 32 and his criminal
history category was IV. As a career offender, Thorne’s total
adjusted offense level increased to 34, and he was placed in
criminal history category VI. See USSG § 4B1.1(b)(2).
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