UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4596
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
AARON COPPEDGE,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (4:09-cr-00064-F-1)
Submitted: October 26, 2011 Decided: November 18, 2011
Before MOTZ, KING, and DAVIS, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
M. Gordon Widenhouse, Jr., RUDOLF, WIDENHOUSE & FIALKO, Chapel
Hill, North Carolina; Keith A. Williams, LAW OFFICES OF KEITH A.
WILLIAMS, P.A., Greenville, North Carolina, for Appellant.
George E. B. Holding, United States Attorney, Jennifer P.
May-Parker, Kristine L. Fritz, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A federal jury convicted Aaron Coppedge of conspiracy
to distribute and possess with intent to distribute cocaine base
(“crack”), in violation of 21 U.S.C. § 846 (2006); four counts
of distribution of crack, in violation of 21 U.S.C. § 841(a)
(2006); and possession with intent to distribute crack, in
violation of 21 U.S.C. § 841(a). The district court sentenced
Coppedge to life imprisonment for the conspiracy and possession
with intent to distribute counts, the statutory mandatory
minimum term, and 360 months of imprisonment for the
distribution counts, to be served concurrently. Coppedge now
appeals. For the reasons that follow, we affirm Coppedge’s
convictions, but vacate the sentence and remand for
resentencing.
Coppedge first argues on appeal that the district
court erred in limiting his cross-examination of two prosecution
witnesses, in violation of his Sixth Amendment right to confront
his accusers. “[A] defendant’s right to cross-examine
cooperating witnesses about sources of potential bias is
guaranteed by the Confrontation Clause of the Constitution.”
United States v. Cropp, 127 F.3d 354, 358 (4th Cir. 1997)
(citation omitted). “We review for abuse of discretion a trial
court’s limitations on a defendant’s cross-examination of a
prosecution witness.” United States v. Smith, 451 F.3d 209, 220
2
(4th Cir. 2006) (citation omitted). Moreover, a district court
“possesses wide latitude to impose reasonable limits on
cross-examination, premised on such concerns as prejudice,
confusion, repetition, and relevance.” Id. (citations omitted).
We have thoroughly reviewed the record and conclude that the
district court did not err in imposing reasonable limitations on
Coppedge’s cross-examination of these witnesses.
Coppedge next argues that the district court plainly
erred in admitting testimony of a witness not proffered as an
expert regarding a drug-related code word. As Coppedge failed
to object to this testimony before the district court, we review
this issue for plain error. See Fed. R. Crim. P. 52(b); United
States v. Olano, 507 U.S. 725, 731-32 (1993). To meet this
standard, Coppedge must demonstrate that there was error, that
was plain, and that affected his substantial rights. Olano, 507
U.S. at 731-32. Moreover, even if Coppedge demonstrates plain
error occurred, we will not exercise discretion to correct the
error “unless the error seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings.” Id.
(internal quotation marks and citation omitted). We conclude,
based on our review of the record, that Coppedge has failed to
meet these standards and therefore failed to demonstrate that
the district courtly plainly erred.
3
Coppedge also argues that the district court abused
its discretion in admitting testimony regarding drug
transactions in which Coppedge was involved that occurred prior
to the substantive counts of conviction. We review a district
court’s determination of the admissibility of evidence under
Fed. R. Evid. 404(b) for abuse of discretion. United States v.
Queen, 132 F.3d 991, 995 (4th Cir. 1997). An abuse of
discretion occurs only when “the trial court acted arbitrarily
or irrationally in admitting evidence.” United States v.
Williams, 445 F.3d 724, 732 (4th Cir. 2006) (internal quotation
marks and citation omitted).
Rule 404(b) prohibits the admission of “[e]vidence of
other crimes, wrongs, or acts . . . to prove the character of a
person in order to show action in conformity therewith.” Fed.
R. Evid. 404(b). Such evidence is “admissible for other
purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake.”
Id. It is an inclusionary rule, allowing evidence of other
crimes or acts to be admitted, except that which tends to prove
only criminal disposition. See Queen, 132 F.3d at 994-95. For
such evidence to be admissible, it must be “(1) relevant to an
issue other than the general character of the defendant;
(2) necessary to prove an element of the charged offense; and
(3) reliable.” United States v. Hodge, 354 F.3d 305, 312 (4th
4
Cir. 2004) (citing Queen, 132 F.3d at 997). Additionally, the
probative value of the evidence must not be substantially
outweighed by its prejudicial effect. Id. (citing Fed. R. Evid.
403).
Rule 404(b) does not, however, apply to evidence of
acts intrinsic to the crime charged. United States v. Chin, 83
F.3d 83, 87 (4th Cir. 1996). “Other criminal acts are intrinsic
when they are inextricably intertwined or both acts are part of
a single criminal episode or the other acts were necessary
preliminaries to the crime charged.” Id. at 88 (internal
quotation marks and citation omitted). With respect to the
testimony of Coppedge’s codefendant, we conclude that this
testimony was intrinsic to the charged offenses, as the
transactions testified to were part of the charged conspiracy.
We also conclude that the district court properly admitted the
other witness’ challenged testimony pursuant to Rule 404(b), and
that this evidence was not unduly prejudicial. See Queen, 132
F.3d at 994 (“Prejudice, as used in Rule 403, refers to evidence
that has an ‘undue tendency to suggest decision on an improper
basis, commonly, though not necessarily, an emotional one.’”)
(citations omitted).
Coppedge next argues on appeal that the Government
failed to prove beyond a reasonable doubt that the prior
convictions listed in its 21 U.S.C. § 851 (2006) notice were
5
sustained by Coppedge. If a defendant sustains a conviction
under § 841(a) or § 846 after sustaining a prior conviction for
a felony drug offense, the defendant is subject to a statutory
mandatory minimum term of twenty years of imprisonment. 21
U.S.C. § 841(b)(1)(A) (2006), current version at 21 U.S.C.A.
§ 841(b)(1)(A) (West Supp. 2011). The statutory mandatory
minimum is raised to life imprisonment if the defendant sustains
the conviction after two convictions for felony drug offenses
have become final. Id.
In order to enhance the defendant’s sentence based on
his prior convictions, however, the Government must file an
information pursuant to 21 U.S.C. § 851 “stating in writing the
previous convictions to be relied upon.” 21 U.S.C. § 851(a)(1).
If the defendant contests the information in the notice, or
claims that any conviction is invalid, he must file a written
response and the district court must “hold a hearing to
determine any issues raised by the response which would except
the person from increased punishment.” 21 U.S.C. § 851(c)(1).
In reviewing a district court’s imposition of an enhanced
sentence based on §§ 841, 851, we review the court’s findings of
fact for clear error and its legal conclusions de novo. United
States v. Kellam, 568 F.3d 125, 143 (4th Cir.), cert. denied,
130 S. Ct. 657 (2009). We have reviewed the record and conclude
that the district court did not err in finding that the
6
Government proved that Coppedge sustained the prior convictions
listed in the § 851 information.
Coppedge next argues that the district court plainly
erred in instructing the jury regarding its finding of the
amount of drugs for which Coppedge was responsible. As Coppedge
did not challenge the jury instructions in the district court,
we review this argument for plain error. See Olano, 507 U.S. at
731-32. Moreover, “‘[w]e review a jury instruction to determine
whether, taken as a whole, the instruction fairly states the
controlling law.’” United States v. Hurwitz, 459 F.3d 463, 474
(4th Cir. 2006) (quoting United States v. Moye, 454 F.3d 390,
398 (4th Cir. 2006) (en banc)). We conclude that the district
court’s instruction to the jury, that it must find the amount of
drugs reasonably foreseeable to Coppedge during the course of
the conspiracy, fairly stated the controlling law. See United
States v. Collins, 415 F.3d 304, 311-14 (4th Cir. 2005).
Therefore, the court did not plainly err in instructing the jury
on the drug weight finding.
Coppedge also argues that one of the convictions
listed in the § 851 notice, and used to enhance the mandatory
minimum for the conspiracy and distribution counts to life
imprisonment, was not a felony punishable by a term of
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imprisonment exceeding one year. 1 We review a sentence for
reasonableness, applying an abuse of discretion standard.
Gall v. United States, 552 U.S. 38, 51 (2007); see also United
States v. Layton, 564 F.3d 330, 335 (4th Cir.), cert. denied,
130 S. Ct. 290 (2009). In so doing, we first examine the
sentence for “significant procedural error,” including “failing
to calculate (or improperly calculating) the Guidelines range,
treating the Guidelines as mandatory, failing to consider the
[18 U.S.C.] § 3553(a) [(2006)] factors, selecting a sentence
based on clearly erroneous facts, or failing to adequately
explain the chosen sentence.” Gall, 552 U.S. at 51.
As discussed above, under 21 U.S.C. § 841(b)(1)(A)
(2006), a defendant is subject to a statutory mandatory minimum
term of imprisonment of ten years unless he has sustained a
prior conviction for a felony drug offense, in which case the
statutory mandatory minimum becomes twenty years of
imprisonment, and is raised to life imprisonment if he has
sustained two such prior convictions. A felony drug offense is
defined in part as an “offense punishable by imprisonment for
more than one year under any law . . . of a State.” 21 U.S.C.
§ 802(44) (2006).
1
Coppedge has not challenged on appeal whether the other
conviction listed in the § 851 notice, for trafficking cocaine,
qualified as a felony drug offense.
8
We conclude that Coppedge’s challenge to his enhanced
sentence must be sustained. Here, one of Coppedge’s prior
convictions was for possession of controlled substances, a Class
I felony under North Carolina law. At the time of his
conviction, Coppedge’s prior record level was III, and the
sentencing court found that he should be sentenced within the
presumptive range of the applicable sentencing table under N.C.
Gen. Stat. § 15A-1340.17(c) (2007). Under North Carolina law,
Coppedge faced a maximum term of imprisonment of eight months.
See N.C. Gen. Stat. § 15A-1340.17(d) (2007). Therefore,
Coppedge could not have received a term of imprisonment
exceeding twelve months for this prior conviction.
In United States v. Simmons, 648 F.3d 237 (4th Cir.
2011) (en banc), we determined that an offense is not punishable
by a term exceeding one year of imprisonment if the defendant
could not have actually received more than one year of
imprisonment for that offense, based on his prior criminal
history and other factors. As Coppedge could not have received
a term exceeding one year of imprisonment for this prior
offense, he did not have two qualifying predicate offenses to
increase the statutory penalties under § 841(b)(1)(A). Because
the advisory Guidelines range for the conspiracy and
distribution counts was determined based on the statutory
mandatory minimum of life imprisonment rather than twenty years
9
of imprisonment, see U.S. Sentencing Guidelines Manual § 5G1.1
(2010), Coppedge was sentenced based on an incorrect Guidelines
calculation and an inapplicable statutory mandatory minimum.
Thus the sentences for the conspiracy and distribution counts
are procedurally unreasonable. 2
Coppedge also argues that the district court erred in
rejecting his claim that the disparity between punishments for
crack and cocaine offenses is unconstitutional. In his reply
brief, Coppedge also asserts that the Fair Sentencing Act should
apply retroactively to defendants such as Coppedge who were
sentenced before the effective date of the act. We conclude
that the district court did not err in rejecting Coppedge’s
argument. This court has repeatedly rejected arguments that the
crack and cocaine punishments in § 841 are unconstitutional.
See, e.g., United States v. Burgos, 94 F.3d 849, 876 (4th Cir.
1996) (collecting cases). Moreover, a panel of this court has
determined that the Fair Sentencing Act does not apply
retroactively to defendants sentenced before the effective date
of the act. See United States v. Bullard, 645 F.3d 237, 248-49
(4th Cir.), cert. denied, 2011 WL 4536465 (2011) (No. 11-5912).
2
This conclusion implies no criticism of the district court
or the Government, both of which dutifully applied authoritative
Circuit precedent at the time of Coppedge’s prosecution and
sentencing.
10
As one panel of this court may not overrule another panel, see
United States v. Rivers, 595 F.3d 558, 564 (4th Cir. 2010), this
argument fails.
Coppedge next argues that the district court erred in
finding that he was a career offender under the advisory
Guidelines, and erred in applying an enhancement for his role as
a manager in the conspiracy. In reviewing the district court’s
calculations under the Guidelines, “we review the district
court’s legal conclusions de novo and its factual findings for
clear error.” United States v. Manigan, 592 F.3d 621, 626 (4th
Cir. 2010) (internal quotation marks and citation omitted). We
will “find clear error only if, on the entire evidence, we are
left with the definite and firm conviction that a mistake has
been committed.” Id. at 631 (internal quotation marks and
citation omitted).
Under the Guidelines, a defendant is considered a
career offender if (1) he was eighteen years old at the time of
the offense of conviction, (2) the offense of conviction is
either a felony crime of violence or controlled substance
offense, and (3) he has sustained two prior convictions for
felony crimes of violence or controlled substance offenses.
U.S. Sentencing Guidelines Manual (“USSG”) § 4B1.1(a) (2010). A
crime of violence is defined in part as any offense punishable
by a term of imprisonment exceeding one year that involves
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conduct that presents a serious potential risk of physical
injury to another. USSG § 4B1.2(a)(1)-(2). A controlled
substance offense is an offense punishable by a term of
imprisonment exceeding one year that prohibits the manufacture,
distribution, or dispensing of a controlled substance, or the
possession with intent to manufacture, distribute, or dispense a
controlled substance. USSG § 4B1.2(b).
Although Coppedge initially objected to the career
offender finding under the Guidelines, at the sentencing hearing
he explicitly withdrew that objection. Therefore, Coppedge has
waived review of this issue. See Olano, 507 U.S. at 733
(“[W]aiver is the ‘intentional relinquishment or abandonment of
a known right.’”) (citations omitted). However, even in the
absence of a waiver, we would conclude that the district court
did not err in finding that Coppedge was a career offender. As
discussed above, Coppedge’s prior conviction for possession of
controlled substances is not a felony controlled substance
offense as Coppedge could not have received more than one year
of imprisonment and the offense did not involve the intent to
distribute the controlled substances. However, even discounting
this conviction, Coppedge had sustained a sufficient number of
convictions for felony controlled substance offenses and crimes
of violence to qualify as a career offender. As we find that
the district court did not err in finding that Coppedge was a
12
career offender, it is unnecessary to review his argument that
the court erred in applying an enhancement for his role as a
manager under the Guidelines, as his career offender status
rendered that calculation moot.
Coppedge also argues that the statutory mandatory
minimum term of life imprisonment for a drug conspiracy offense
violates the Fifth Amendment’s Due Process Clause and the Eighth
Amendment’s prohibition on cruel and unusual punishment. As we
have determined that the statutory mandatory minimum term of
life imprisonment is not applicable to Coppedge, however, we
decline to reach this issue at this time.
Finally, Coppedge argues that the district court erred
in enhancing his sentence based on prior convictions that were
neither admitted by him nor proved to the jury beyond a
reasonable doubt. This argument is foreclosed by binding
precedent, see, e.g., Apprendi v. New Jersey, 530 U.S. 466, 490
(2000) (“Other than the fact of a prior conviction, any fact
that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond
a reasonable doubt.”), and therefore must fail.
Accordingly, we affirm Coppedge’s convictions, but
vacate the sentence for the conspiracy and distribution counts,
and remand for resentencing in light of Simmons. We dispense
with oral argument because the facts and legal contentions are
13
adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
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