UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5260
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TERRY DEMOND CUNNINGHAM,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Margaret B. Seymour, Chief
District Judge. (3:08-cr-00946-MBS-4)
Submitted: January 31, 2012 Decided: February 23, 2012
Before GREGORY, KEENAN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Timothy Ward Murphy, KOLB & MURPHY, ATTORNEYS AT LAW, PLLC,
Sumter, South Carolina, for Appellant. John David Rowell,
Assistant United States Attorney, Columbia, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Terry Demond Cunningham was convicted after a jury
trial of conspiracy to possess with intent to distribute and to
distribute five or more kilograms of cocaine and fifty or more
grams of cocaine base in violation of 21 U.S.C.A. §§ 841(a)(1),
(b)(1)(A), (b)(1)(C), 846 (West 1999 & Supp. 2011), and use of a
communication facility to facilitate the commission of a drug
trafficking offense, in violation of 21 U.S.C. § 843(b), 18
U.S.C. § 2 (2006). The district court sentenced Cunningham to a
total of 240 months’ imprisonment. The court also imposed ten
years of supervised release and a $200 assessment and ordered
the forfeiture of an automobile that was derived from the
proceeds of the offenses. Cunningham’s counsel filed a brief in
accordance with Anders v. California, 386 U.S. 738 (1967),
stating that, in counsel’s view, there are no meritorious issues
for appeal, but challenging the district court’s determination
that Cunningham breached the proffer agreement, the denial of
Cunningham’s motion to suppress wiretap evidence, the
sufficiency of the evidence, and the reasonableness of the
sentence.
Cunningham filed a pro se supplemental brief asserting
that the district court erred by denying his request for a jury
charge on multiple conspiracies and raising numerous challenges
to the effectiveness of counsel. Pursuant to our obligation
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under Anders, we have reviewed the entire record for any
meritorious issue for appeal. Finding no reversible error, we
affirm.
Counsel first contends that the district court erred
in finding Cunningham in breach of the proffer agreement.
Cunningham asserted that he was given only the last page of the
agreement and told by his attorney that if he signed the
document, the government would not oppose his release on bond
and that he would receive a lesser sentence. Cunningham
asserted that his obligations under the agreement were not
explained to him and that he did not see the entirety of the
document until nearly six months later, and after his initial
debriefing by the government.
Cunningham’s former counsel testified at the hearing
pursuant to Cunningham’s waiver of the attorney–client
privilege, and informed the court that he had thoroughly
reviewed the entire agreement with Cunningham before Cunningham
signed it, that Cunningham knew the contents and his obligations
under the agreement, and also was informed that the agreement
did not provide for a lesser sentence.
After hearing all the evidence, the court granted the
government’s motion to hold Cunningham in breach of the
agreement. We find no clear error in the district court’s
credibility determination or factual findings and no error in
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its legal conclusions that Cunningham breached the proffer
agreement and that his statements could thus be used against
him. See United States v. Lopez, 219 F.3d 343, 346 (4th Cir.
2000); United States v. Seeright, 978 F.2d 842, 846 (4th Cir.
1992).
Next, counsel contends that the district court erred
in denying Cunningham’s motion to suppress the wiretap evidence.
Cunningham argued that the government failed to meet its burden
of showing that traditional investigative techniques were likely
to be wholly unsuccessful. The purpose of 18 U.S.C.
§ 2518(1)(c), (3)(c) (2006), is to make sure that “the
relatively intrusive device of wiretapping is neither routinely
employed as the initial step in criminal investigation . . . nor
resorted to in situations where traditional techniques would
suffice to expose the crime.” United States v. Smith, 31 F.3d
1294, 1297 (4th Cir. 1994) (quoting United States v. Giordano,
416 U.S. 505, 515 (1974), and United States v. Kahn, 415 U.S.
143, 153 n.12 (1974)) (internal quotations omitted). However,
the burden on the government to show that other investigative
techniques have failed or would fail is not great. Smith, 31
F.3d at 1297. The government need not show that other methods
have been wholly unsuccessful or that it has exhausted all
possible alternatives. Id. at 1298. Rather, the government
must present specific factual information “sufficient to
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establish that it has encountered difficulties in penetrating
the criminal enterprise or in gathering evidence to the point
where wiretapping becomes reasonable.” Id. at 1298 (quoting
United States v. Ashley, 876 F.2d 1069, 1072 (1st Cir. 1989))
(internal quotations omitted).
We have reviewed the transcript of the hearing on this
issue and the evidence submitted, and conclude that the district
court did not abuse its discretion in determining that the
government met this burden. See United States v. Wilson, 484
F.3d 267, 280 (4th Cir. 2007). We further find no error in the
district court’s order upholding the wiretap authorization and
admitting the evidence. Id. (providing standard of review).
Cunningham next argues that the evidence was
insufficient to support the jury’s verdict. “The verdict of a
jury must be sustained if there is substantial evidence, taking
the view most favorable to the Government, to support it.”
Glasser v. United States, 315 U.S. 60, 80 (1942). A defendant
challenging the sufficiency of the evidence faces a heavy
burden. United States v. Beidler, 110 F.3d 1064, 1067 (4th Cir.
1997). Furthermore, “[t]he jury, not the reviewing court,
weighs the credibility of the evidence and resolves any
conflicts in the evidence presented.” Beidler, 110 F.3d at 1067
(internal quotation marks and citation omitted). “Reversal for
insufficient evidence is reserved for the rare case where the
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prosecution’s failure is clear.” Id. (internal quotation marks
and citation omitted); United States v. Moye, 454 F.3d 390, 394
(4th Cir. 2006) (en banc) (internal quotation marks omitted).
After reviewing the evidence presented during
Cunningham’s trial, we conclude that the evidence, viewed in the
light most favorable to the government, established the
existence of an agreement between two or more persons to
distribute and possess cocaine and cocaine base with the intent
to distribute, that Cunningham knew of the conspiracy and that
he knowingly and voluntarily became a part of the conspiracy.
See United States v. Yearwood, 518 F.3d 220, 225-26 (4th Cir.
2008); United States v. Burgos, 94 F.3d 849, 857 (4th Cir. 1996)
(en banc).
Additionally, the evidence was sufficient to prove
that Cunningham knowingly and intentionally used the telephone
to facilitate or to commit a drug trafficking crime. See United
States v. Pratt, 351 F.3d 131, 138 (4th Cir. 2003) (finding
evidence sufficient where phone call was used to set the final
time for drug transaction); United States v. Lozano, 839 F.2d
1020, 1023 (4th Cir. 1988) (upholding conviction when phone call
was used to announce defendant’s arrival in Virginia to handle
problem related to cocaine).
In his pro se brief, Cunningham argues that the
district court erred by denying his request for a jury charge on
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multiple conspiracies. “A multiple conspiracy instruction is
not required unless the proof at trial demonstrates that [the
appellant was] involved only in separate conspiracies unrelated
to the overall conspiracy charged in the indictment.” United
States v. Squillacote, 221 F.3d 542, 574 (4th Cir. 2000)
(internal quotation marks and citation omitted) (emphasis in
original). The evidence showed that there existed one overall
conspiracy and that Cunningham was a member of that conspiracy.
The conspiracy had a single general business venture for the
purpose of selling cocaine and crack for profit in roughly the
same geographic area, the key members of the conspiracy were the
same, and the members used common methods for arranging for drug
transactions.
Moreover, because it is not necessary that all persons
in a conspiracy know all the other actors and the scope of the
conspiracy, the district court properly found that the evidence
did not require a multiple conspiracies charge. Id.; Pratt, 351
F.3d at 140 (trial evidence is sufficient to establish a single
conspiracy where the conspirators are shown to share the same
objectives, the same methods, the same geographic spread, and
the same results). Accordingly, we affirm Cunningham’s
convictions.
We have reviewed Cunningham’s sentence and find that
it was properly calculated and that the sentence imposed was
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reasonable. See Gall v. United States, 552 U.S. 38, 51 (2007);
see United States v. Llamas, 599 F.3d 381, 387 (4th Cir. 2010).
The district court properly calculated the advisory Guidelines
range, appropriately treated the Sentencing Guidelines as
advisory, considered the applicable Guidelines range and the
arguments of counsel, and weighed the relevant 18 U.S.C.
§ 3553(a) (2006) factors.
While the district court stated its consideration of
the § 3553(a) factors, it did not expound upon them or in any
way state how each of the factors applied specifically in
Cunningham’s case. However, under the circumstances of this
case, the explanation is sufficient and we conclude that the
sentence is procedurally reasonable. See Rita v. United States,
551 U.S. 338, 359 (2007) (“Where a matter is as conceptually
simple as in the case at hand and the record makes clear that
the sentencing judge considered the evidence and arguments, we
do not believe the law requires the judge to write more
extensively.”). We conclude that the district court did not
abuse its discretion in imposing the chosen sentence, which was
the 240-month mandatory minimum sentence for the counts of
conviction. See Gall, 552 U.S. at 41; United States v. Allen,
491 F.3d 178, 193 (4th Cir. 2007) (applying appellate
presumption of reasonableness to within-Guidelines sentence).
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In his pro se brief, Cunningham asserts that his
attorney failed to challenge the drug quantity, advised him to
stipulate to the quantity of cocaine and to his prior
conviction, and advised him to waive the attorney-client
privilege and allow his former attorney to testify during the
breach of the proffer agreement hearing. Claims of ineffective
assistance of counsel generally are not cognizable on direct
appeal unless the record conclusively establishes counsel’s
“objectively unreasonable performance” and resulting prejudice.
United States v. Benton, 523 F.3d 424, 435 (4th Cir. 2008).
Instead, ineffective assistance claims should be raised, if at
all, in a motion brought pursuant to 28 U.S.C.A. § 2255 (West
Supp. 2011), in order to promote sufficient development of the
record. United States v. Baptiste, 596 F.3d 214, 216 n.1 (4th
Cir. 2010). Because the record before us does not conclusively
establish that Cunningham’s attorneys were ineffective, we
decline to consider these claims on direct appeal.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. This court requires that counsel inform Cunningham, in
writing, of the right to petition the Supreme Court of the
United States for further review. If Cunningham requests that a
petition be filed, but counsel believes that such a petition
would be frivolous, then counsel may move in this court for
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leave to withdraw from representation. Counsel’s motion must
state that a copy thereof was served on Cunningham. 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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