ON REHEARING
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4327
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL CARL STEVENSON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (7:08-cr-00057-BO-3)
Submitted: October 25, 2011 Decided: December 9, 2011
Before DAVIS, WYNN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Robert L. Cooper, COOPER, DAVIS & COOPER, Fayetteville, North
Carolina, for Appellant. George E. B. Holding, United States
Attorney, Jennifer P. May-Parker, Denise Walker, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
After a jury trial, Michael Carl Stevenson was
convicted of one count of conspiracy to possess with intent to
distribute 500 grams or more of cocaine, in violation of 21
U.S.C. §§ 841(a)(1), 846 (2006). On appeal, Stevenson’s counsel
filed a brief claiming the evidence was insufficient to support
the conviction. We affirmed. See United States v. Stevenson,
No. 10-4327, 2011 WL 2837402 (4th Cir. July 19, 2011)
(unpublished). We subsequently stayed the mandate pursuant to
Fed. R. App. P. 41(d)(1) and granted Stevenson’s pro se petition
for rehearing, reinstated and granted his November 2, 2010
motion for leave to file a pro se supplemental brief and
directed the Government to file a brief addressing Stevenson’s
pro se claim that the district court abused its discretion by
ordering a sentence at the top end of the Sentencing Guidelines,
without indicating it considered counsel’s arguments for a
sentence at the low end of the Guidelines or any of the 18
U.S.C. § 3553(a) (2006) sentencing factors, citing United
States v. Lynn, 592 F.3d 572 (4th Cir. 2010), and United
States v. Carter, 564 F.3d 325 (4th Cir. 2009). After receiving
the Government’s brief and conducting further review, we affirm
the conviction and sentence.
This court reviews de novo the denial of Stevenson’s
motion for judgment of acquittal. See United States v. Green,
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599 F.3d 360, 367 (4th Cir.), cert. denied, 131 S. Ct. 271
(2010). “[V]iewing the evidence in the light most favorable to
the Government,” United States v. Bynum, 604 F.3d 161, 166 (4th
Cir.) (internal quotation marks omitted), cert. denied, 130 S.
Ct. 3442 (2010), the court is to determine whether the
conviction is supported by “substantial evidence,” where
“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,”
United States v. Young, 609 F.3d 348, 355 (4th Cir. 2010)
(internal quotation marks omitted). The ultimate question is
whether “any rational trier of facts could have found the
defendant guilty beyond a reasonable doubt.” Bynum, 604 F.3d at
166 (internal quotation marks omitted).
Conviction for conspiracy to distribute narcotics
under 21 U.S.C. § 846 requires proof beyond a reasonable doubt
of three elements: “(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 voluntary participation in the
conspiracy.” United States v. Kellam, 568 F.3d 125, 139 (4th
Cir.), cert. denied, 130 S. Ct. 657 (2009). “Because a
conspiracy is by nature clandestine and covert, there rarely is
direct evidence of such an agreement . . . [C]onspiracy is
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usually proven by circumstantial evidence.” United States v.
Yearwood, 518 F.3d 220, 226 (4th Cir. 2008) (internal quotation
marks and citation omitted). Evidence supporting an agreement
may consist of the defendant’s relationship to the other
conspirators and his conduct and attitude during the course of
the conspiracy. United States v. Burgos, 94 F.3d 849, 858 (4th
Cir. 1996) (en banc).
We conclude that the evidence was sufficient to show
that Stevenson entered into a conspiracy with Beatty and
Patterson. Stevenson knew Beatty had a history of dealing drugs
and had allowed him to store drugs on his property. On the day
of the transaction, Stevenson provided Beatty with drug testing
kits, drove him and Patterson to the location of the drug deal,
kept his plans private from other individuals, discussed with
the other two men that they needed to be on the same page if
anything went wrong and agreed to accept payment of $1000 for
driving. We conclude that this evidence of Stevenson’s conduct
and attitude shows that he was in agreement with the other men
to purchase narcotics for the purpose of distribution.
We have reviewed the issues Stevenson presented in his
pro se supplemental brief and conclude that none of the issues
compel us to vacate his conviction or sentence. With regard to
Stevenson’s sentencing issues, we have reviewed the record and
conclude that the district court did not abuse its discretion.
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See Gall v. United States, 552 U.S. 38, 51 (2007) (stating
standard of review).
The court reviews first the reasonableness of the
process by which the sentencing court arrived at its decision
and then reviews the reasonableness of the sentence itself. Id.
In determining the procedural reasonableness of a sentence, this
court considers whether the district court properly calculated
the Guidelines range, treated the Guidelines as advisory,
considered the § 3553(a) factors, analyzed any arguments
presented by the parties, and sufficiently explained the
selected sentence. Id. “Regardless of whether the district
court imposes an above, below, or within-Guidelines sentence, it
must place on the record an individualized assessment based on
the particular facts of the case before it.” United States v.
Carter, 564 F.3d 325, 330 (4th Cir. 2009) (internal quotation
marks omitted). Where, as here, the district court imposed a
within-Guidelines sentence, the explanation may be “less
extensive, while still individualized.” United States v.
Johnson, 587 F.3d 625, 639 (4th Cir. 2009), cert. denied, 130 S.
Ct. 2128 (2010). “This is because guidelines sentences
themselves are in many ways tailored to the individual and
reflect approximately two decades of close attention to federal
sentencing policy.” Id. (internal quotation marks omitted).
However, that explanation must be sufficient to allow for
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“‘meaningful appellate review,’” Carter, 564 F.3d at 330
(quoting Gall, 552 U.S. at 50), such that the appellate court
need “not guess at the district court’s rationale.” Id. at 329.
A court’s reasoning for imposing a within-Guidelines sentence
may be clear from anything the court said to the defendant
throughout the sentencing hearing. See United States v.
Thompson, 595 F.3d 544, 547 (4th Cir. 2010).
In order to preserve a sentencing issue for appellate
review, the defendant “must, at some point in the proceedings
draw arguments from § 3553 for a sentence different than the one
ultimately imposed[.]” United States v. Lynn, 592 F.3d 576, 578
(4th Cir. 2010); see also United States v. Boulware, 604 F.3d
832, 838 (4th Cir. 2010) (arguments under 18 U.S.C. § 3553(a)
for a sentence different than the one imposed are sufficient to
preserve a claim).
Under 18 U.S.C. § 3553(a), the district court should
consider the nature and circumstances of the offense and the
history and characteristics of the defendant, the need for the
sentence to reflect the seriousness of the offense, to promote
respect for the law, to provide just punishment for the offense,
to provide adequate deterrence, to protect the public and to
provide the defendant with educational and vocational training.
Stevenson’s counsel requested a sentence at the low
end of the Guidelines, asserting that such a sentence would be
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sufficient deterrence and would serve to protect the public.
Because counsel’s request for a low sentence was not supported
with anything from the record and was nothing more than a
recitation of two of the § 3553(a) sentencing factors, we
conclude that the court was not obliged to directly respond to
counsel’s request. We note, in contrast, that the Government
provided a factual basis in support of its request for a
sentence at the high end of the Guidelines.
We conclude that the district court properly “place[d]
on the record an individualized assessment based on the
particular facts of the case before it,” Carter, 564 F.3d at
330, and adequately stated its reasoning for sentencing
Stevenson to the high end of the Guidelines. The sentencing
transcript demonstrates that the court, having presided over the
trial, based the sentence on Stevenson’s history and
characteristics. For example, the court stated the Guideline
range and then heard arguments from defense counsel and from the
Government. The court also permitted Stevenson to speak.
During a colloquy with Stevenson, the court stated the
following: “I think that you’ve had a life of manipulation and
deceit and that you have been able to survive through those
methodologies and that, unfortunately for you, the time has come
where the lies and deceit have run out.”
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Even if the district court failed to give adequate
consideration to counsel’s request for a sentence at the low end
of the Guidelines or to the § 3553(a) sentencing factors, we
conclude that any error was harmless. There is nothing in the
record to suggest that the court’s approach to determining the
sentence had an improper substantial and injurious effect or
influence on the proceedings. See Lynn, 592 F.3d at 585.
Accordingly, we affirm Stevenson’s conviction and
sentence. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
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