UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4048
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WILLIAM ELDRIDGE ASKEW, III,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever, III,
Chief District Judge. (5:14-cr-00023-D-2)
Submitted: November 29, 2016 Decided: December 20, 2016
Before NIEMEYER, DUNCAN, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Paul K. Sun, Jr., Kelly Margolis Dagger, ELLIS & WINTERS LLP,
Raleigh, North Carolina, for Appellant. John Stuart Bruce,
Acting United States Attorney, Jennifer P. May-Parker, Phillip
A. Rubin, Assistant United States Attorneys, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury convicted William Eldridge Askew, III, of conspiring
to possess with intent to distribute 100 grams or more of
heroin, 21 U.S.C. § 846 (2012), and aiding and abetting
possession with intent to distribute heroin, 21 U.S.C.
§ 841(a)(1) (2012). On appeal, Askew challenges the sufficiency
of the evidence, two evidentiary rulings, and his designation as
a career offender. Finding no reversible error, we affirm.
I.
“[W]e review de novo a district court’s denial of a motion
for judgment of acquittal.” United States v. Fuertes, 805 F.3d
485, 501-02 (4th Cir. 2015), cert. denied, 136 S. Ct. 1220
(2016). In assessing evidentiary sufficiency, we determine
whether substantial evidence supports the conviction when viewed
in the light most favorable to the Government. United States v.
Engle, 676 F.3d 405, 419 (4th Cir. 2012). “Substantial evidence
is evidence that a reasonable finder of fact could accept as
adequate and sufficient to support a conclusion of guilt beyond
a reasonable doubt.” Id. “To prove [a 21 U.S.C. § 846]
conspiracy, the government must demonstrate beyond a reasonable
doubt (1) an agreement between two or more persons to engage in
conduct that violates a federal drug law, (2) the defendant’s
knowledge of the conspiracy, and (3) the defendant’s knowing and
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voluntary participation in the conspiracy.” United States v.
Gomez-Jimenez, 750 F.3d 370, 378 (4th Cir. 2014).
Askew contends that the Government failed to establish that
Askew knowingly and voluntarily conspired to distribute heroin
or that 100 grams or more of heroin were attributable to Askew,
highlighting his codefendant’s trial testimony that Askew had no
“say-so” in the drug deal and that the Government failed to
introduce 100 grams of heroin into evidence. We conclude,
however, that sufficient evidence supports Askew’s conspiracy
conviction. Askew’s codefendant, who pled guilty prior to
trial, testified that Askew participated in the heroin
distribution by allowing heroin to be hidden in Askew’s hotel
room and occasionally delivering the heroin to the codefendant.
While the codefendant did testify that Askew had no “say-so”
regarding the heroin deal in Detroit, Askew admitted to law
enforcement that his role in that deal was to package the
heroin. Furthermore, while less than 100 grams of heroin was
purchased in Detroit, the codefendant testified that the
agreement was to receive 100 grams of heroin. See United States
v. Shabani, 513 U.S. 10, 16 (1994) (noting that overt act is not
required to establish drug conspiracy, as “the criminal
agreement itself is the actus reus”).
Askew’s possession conviction required proof of “(1)
possession of a narcotic controlled substance; (2) knowledge of
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the possession; and (3) the intent to distribute.” United
States v. Collins, 412 F.3d 515, 519 (4th Cir. 2005).
Possession may be actual or constructive; “[c]onstructive
possession may be proved by demonstrating that the defendant
exercised, or had the power to exercise, dominion and control
over the item.” United States v. Burgos, 94 F.3d 849, 873 (4th
Cir. 1996) (en banc). “The same evidence establishing a
defendant’s participation in a conspiracy may support a
conclusion that a defendant participated in the principal’s
unlawful intent to possess and distribute drugs, thereby proving
guilt of aiding and abetting as well.” Gomez-Jimenez, 750 F.3d
at 378 (internal quotation marks omitted).
Askew argues that insufficient evidence supports his
possession conviction because the Government failed to prove he
knowingly possessed the heroin and offered an inadequate chain
of custody to establish that the heroin introduced into evidence
was the heroin recovered by law enforcement. We conclude
otherwise. Askew’s statement to law enforcement demonstrates
that he knew the vehicle contained heroin and he was planning to
assist his codefendant in packaging that heroin for sale. Askew
was driving the vehicle at the time of the traffic stop and his
codefendant testified that Askew placed the heroin in the bag
where law enforcement found it. Accordingly, we find sufficient
evidence supports Askew’s convictions.
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II.
Askew next contends that two evidentiary rulings require a
new trial. We review a district court’s evidentiary rulings for
abuse of discretion. United States v. Faulls, 821 F.3d 502, 508
(4th Cir. 2016). Reversal is warranted only if the district
court’s determination “was arbitrary or irrational.” Id.
(internal quotation marks omitted). Moreover, we review
evidentiary rulings for harmless error, which requires us to
determine “with fair assurance, after pondering all that
happened without stripping the erroneous action from the whole,
that the judgment was not substantially swayed by the error.”
United States v. Cloud, 680 F.3d 396, 401 (4th Cir. 2012)
(internal quotation marks omitted).
Askew first claims that the district court erred in
allowing law enforcement officers to testify that when
individuals exit a vehicle during a traffic stop they are trying
to separate themselves from the contents of the vehicle, that
the packaging material found in the vehicle is commonly used to
package heroin, and that people who spend 11 hours in a vehicle
together would discuss the purpose of their trip. Askew argues
that this testimony was based on the officers’ training and
experience, and thus was not lay opinion testimony under Fed. R.
Evid. 701, but rather expert testimony under Fed. R. Evid. 702.
The Government responds that any error was harmless.
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We agree with the Government. Askew’s codefendants
testified that the materials found in the vehicle were to be
used to package the heroin. A jury could have inferred, without
the disputed testimony, that passengers would discuss the
purpose of their trip. Moreover, Askew admitted in his
statement to law enforcement that he knew heroin was in the
vehicle, a fact further supported by the Government’s witnesses.
Therefore, any error in admitting the officers’ testimony was
harmless.
Askew next alleges that the district court erred in
admitting evidence that he met his codefendant while both were
incarcerated. Askew contends that the evidence was not
intrinsic to the conspiracy, that its sole purpose was to paint
him as a criminal, and thus, that the evidence was unfairly
prejudicial. “Evidence of a crime, wrong, or other act is not
admissible to prove a person’s character in order to show that
on a particular occasion the person acted in accordance with the
character.” Fed. R. Evid. 404(b)(1). But such evidence may be
admitted for other reasons. Id. 404(b)(2).
Rule 404(b) is not implicated if the evidence in question
“concerns acts intrinsic to the alleged crime.” United States
v. Otuya, 720 F.3d 183, 188 (4th Cir. 2013) (internal quotation
marks omitted). “[E]vidence of other bad acts is intrinsic if,
among other things, it involves the same series of transactions
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as the charged offense, which is to say that both acts are part
of a single criminal episode.” Id. (citation and internal
quotation marks omitted). Similarly, the evidence is intrinsic
“if it is necessary to complete the story of the crime on
trial.” United States v. Kennedy, 32 F.3d 876, 885 (4th Cir.
1994) (alteration and internal quotation marks omitted). The
evidence is not extrinsic merely because it occurs at a
different time than the conspiracy. Id.
We conclude that the district court did not abuse its
discretion in admitting this evidence because it was evidence
intrinsic to the alleged crime of conspiracy. The central issue
in the trial concerned Askew’s knowledge of, and participation
in, his codefendant’s heroin distribution. Askew’s relationship
with his codefendant was thus important for the Government to
establish. Accordingly, we affirm Askew’s convictions.
III.
Finally, Askew argues that the district court erroneously
designated him a career offender under the United States
Sentencing Guidelines. The Government contends that even if the
district court erred in sentencing Askew as a career offender,
that error was harmless.
Rather than reviewing the merits of Askew’s challenge to
his career offender designation, “we may proceed directly to an
assumed error harmlessness inquiry.” Gomez-Jimenez, 750 F.3d at
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382 (internal quotation marks omitted). “A Guidelines error is
considered harmless if . . . (1) the district court would have
reached the same result even if it had decided the [G]uidelines
issue the other way, and (2) the sentence would be reasonable
even if the [G]uidelines issue had been decided in the
defendant’s favor.” Id. (internal quotation marks omitted). We
must be “certain that the result at sentencing would have been
the same,” absent the enhancement. United States v. Montes-
Flores, 736 F.3d 357, 370 (4th Cir. 2013) (internal quotation
marks omitted). Here, the district court clearly stated that it
would have imposed the same sentence had it not designated Askew
a career offender, and thus we may proceed to review Askew’s
sentence for substantive reasonableness. See Gomez-Jimenez, 750
F.3d at 383.
“When reviewing the substantive reasonableness of a
sentence, we examine the totality of the circumstances to see
whether the sentencing court abused its discretion in concluding
that the sentence it chose satisfied the standards set forth in
§ 3553(a).” Id. (alteration and internal quotation marks
omitted). We conclude that Askew’s sentence is substantively
reasonable, as the district court recognized the § 3553(a)
factors and specifically relied on the seriousness of the
offense and Askew’s lengthy criminal history in imposing the
180-month imprisonment. Moreover, while the district court
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recognized Askew’s argument that older defendants are less
likely to recidivate, it noted that Askew’s previous history
indicated he might not follow that trend.
IV.
Accordingly, we affirm the district court’s judgment. 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
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