United States v. Darius Galloway

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 09-4843

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DARIUS LAMONT GALLOWAY,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (7:07-cr-00036-F-1)

Submitted: December 7, 2011 Decided: December 22, 2011

Before MOTZ and KEENAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed in part, vacated in part and remanded by unpublished
per curiam opinion.

Jorgelina E. Araneda, ARANEDA LAW FIRM, Raleigh, North Carolina,
for Appellant. Thomas G. Walker, 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Unpublished opinions are not binding precedent in this circuit.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:

Darius Lamont Galloway appeals his convictions and

resulting 360-month sentence following a jury trial for

possession with intent to distribute fifty grams or more of

cocaine, in violation of 21 U.S.C. § 841(a)(1) (2006) (Count

One); possession of a firearm by a felon, in violation of 18

U.S.C. §§ 922(g)(1), 924 (2006) (Count Two); and possession of a

firearm in furtherance of a drug trafficking crime, in violation

of 18 U.S.C. § 924(c) (2006) (Count Three). On appeal, Galloway

contends that the district court erred by (1) overruling his

hearsay objection to officers’ testimony at trial; (2)

calculating his advisory Guidelines range without making a

specific finding as to drug quantities; (3) sentencing him as a

career offender pursuant to the U.S. Sentencing Guidelines

Manual (“USSG”) § 4B1.1(a) (2010); and (4) denying his motion

for a judgment of acquittal as to Count One and Count Three.

While we find no fault with his convictions, in light of our

recent decision in United States v. Simmons, 649 F.3d 237 (4th

Cir. 2011) (en banc), we agree with Galloway that he is no

longer a career offender for sentencing purposes. Accordingly,

we affirm Galloway’s convictions, vacate his sentence, and

remand for resentencing.

We first address Galloway’s arguments on appeal with

respect to his convictions. Galloway contends that the district

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court erred in overruling his hearsay objection to testimony

provided by Detective Little and Sergeant Worthington at trial.

When describing their involvement in the case, both officers

testified that Brent Best, a Government informant, called

Detective Little and stated that Galloway was selling narcotics

from Best’s residence. The district court overruled Galloway’s

hearsay objection, finding that Best’s out of court statement

was not offered for the truth of the matter asserted, but rather

“to show the reason further actions were taken by Mr. Little.”

We review the district court’s evidentiary rulings for

abuse of discretion. United States v. Delfino, 510 F.3d 468,

470 (4th Cir. 2007) (citing United States v. Hedgepeth, 418 F.3d

411, 419 (4th Cir. 2005)). A district court abuses its

discretion when it “acts arbitrarily or irrationally, fails to

consider judicially recognized factors constraining its exercise

of discretion, relies on erroneous factual or legal premises, or

commits an error of law.” Hedgepeth, 418 F.3d at 419. Hearsay

is an out of court statement “offered in evidence to prove the

truth of the matter asserted.” Fed. R. Evid. 801(c). However,

“an out of court statement is not hearsay if it is offered for

the limited purpose of explaining why a government investigation

was undertaken.” United States v. Love, 767 F.2d 1052 (4th Cir.

1985) (internal quotation marks and citation omitted).

Therefore, as the statements were offered to establish why the

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officers went to Best’s home to investigate the possible sale of

narcotics, we find that the district court acted within its

discretion in admitting Detective Little and Sergeant

Worthington’s testimony as non-hearsay.

Galloway next contends that the district court erred

in denying his motion for a judgment of acquittal as to Count

One, possession with intent to distribute cocaine, and Count

Three, possession of a firearm in furtherance of a drug

trafficking crime. We review de novo a district court’s

decision to deny a Rule 29 motion for a judgment of acquittal.

United States v. Hickman, 626 F.3d 756, 762-63 (4th Cir. 2010).

In reviewing the sufficiency of the evidence, this court’s “role

is limited to considering whether there is substantial evidence,

taking the view most favorable to the Government, to support the

conviction.” Delfino, 510 F.3d at 471 (citation omitted).

“[S]ubstantial 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. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en

banc). “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.) (internal

quotation marks omitted), cert. denied, 131 S. Ct. 428 (2010).

The record reflects that this is not such a rare case; rather,

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there was ample evidence to support Galloway’s convictions on

Counts One and Three. Accordingly, we affirm Galloway’s

convictions.

We now turn to Galloway’s challenges to his sentence.

We review a sentence imposed by a district court under a

deferential abuse of discretion standard. Gall v. United

States, 552 U.S. 38, 46 (2007). A district court commits

significant procedural error when it improperly calculates a

defendant’s Guidelines range. Id. at 51. Pursuant to USSG §

4B1.1(a), a defendant is designated a career offender if he “has

at least two prior felony convictions of either a crime of

violence or a controlled substance offense.”

Galloway and the Government agree that the district

court erred in sentencing Galloway as a career offender in light

of Simmons. Consistent with this court’s decision in United

States v. Harp, 406 F.3d 242, 246 (4th Cir. 2005), the district

court determined that Galloway qualified as a career offender

based upon his 1999 and 2003 North Carolina convictions for

possession with intent to sell and deliver cocaine, possession

with intent to sell marijuana, and conspiracy to possess with

intent to sell marijuana, as well as his 2001 South Carolina

conviction for possession of marijuana with intent to

distribute. This court recently overruled Harp in its en banc

decision in Simmons, finding that a North Carolina state

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conviction may not be classified as a conviction punishable by a

term of imprisonment exceeding one year based on the maximum

aggravated sentence that could be imposed on a repeat offender

if the individual defendant was not himself eligible for such a

sentence. Simmons, 649 F.3d at 241, 243-48. Our review of the

record reveals that Galloway was not eligible for a sentence

exceeding one year for his North Carolina convictions.

Accordingly, Galloway’s 2001 South Carolina conviction remains

his only felony conviction for a controlled substance offense,

and Galloway no longer has the requisite predicate offenses to

qualify as a career offender.

Galloway next argues that the district court

erroneously calculated his sentencing Guidelines range without

making a specific finding as to the quantity of drugs in his

possession. Galloway’s argument is misplaced. Because the

district court calculated Galloway’s advisory Guidelines range

based upon his career offender status, the court was not

required to make a finding as to drug quantities. See USSG

§ 4B1.1(b). In light of the fact that Galloway is no longer a

career offender, however, the district court upon remand must

determine the drug quantities attributable to Galloway to

calculate his new Guidelines range.

Accordingly, we affirm Galloway’s convictions, vacate

his sentence, and remand for resentencing consistent with

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Simmons. We also deny Galloway’s motion for leave to file a

supplemental brief. 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 IN PART;
VACATED IN PART;
AND REMANDED

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