UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-5031
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
RAPHEL SMITH,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Malcolm J. Howard,
Senior District Judge. (7:09-cr-00054-H-3)
Submitted: August 30, 2012 Decided: September 12, 2012
Before WYNN and FLOYD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Jennifer Haynes Rose, LAW OFFICE OF JENNIFER HAYNES ROSE,
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Unpublished opinions are not binding precedent in this circuit.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:
Raphel Smith was convicted following a jury trial of
conspiracy to distribute and possess with intent to distribute
fifty or more grams of cocaine base (Count One), in violation of
21 U.S.C. § 846 (2006); distribution of more than five grams of
cocaine base and a quantity of marijuana and aiding and abetting
the same (Count Six), and distribution of a quantity of cocaine
base and aiding and abetting the same (Count Fourteen), both in
violation of 21 U.S.C. §§ 841(a)(1) and 2 (2006); and possession
of a firearm in furtherance of a drug trafficking crime (Count
Fifteen), in violation of 18 U.S.C. § 924(c)(1)(A) (2006). The
district court sentenced Smith to concurrent terms of 235
months’ imprisonment on Counts One, Six, and Fourteen and a
consecutive sentence of 60 months on Count Fifteen. On appeal,
Smith challenges the sufficiency of the evidence, an evidentiary
ruling, and the reasonableness of his sentence. We affirm in
part, vacate in part, and remand for resentencing.
Smith first argues that the district court erred in
denying his Fed. R. Crim. P. 29 motion for judgment of acquittal
as to all four counts. We review de novo the district court’s
denial of a Rule 29 motion. United States v. Penniegraft, 641
F.3d 566, 571 (4th Cir.), cert. denied, 132 S. Ct. 564 (2011).
Where the motion alleges insufficiency of the evidence, we must
affirm if, viewing the evidence in the light most favorable to
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the Government, “any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.”
United States v. Green, 599 F.3d 360, 367 (4th Cir. 2010)
(internal quotation marks omitted). In making this
determination, we review the record “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. Hickman, 626 F.3d 756, 763 (4th Cir. 2010)
(internal quotation marks omitted), cert. denied, 132 S. Ct. 469
(2011). We will not make credibility determinations, instead
assuming that the jury resolved conflicting evidence in the
Government’s favor. Penniegraft, 641 F.3d at 572. Thus, a
defendant challenging the sufficiency of the evidence bears “a
heavy burden,” as “[r]eversal . . . is reserved for the rare
case where the prosecution’s failure is clear.” United
States v. Ashley, 606 F.3d 135, 138 (4th Cir. 2010) (internal
quotation marks omitted).
Contrary to Smith’s assertion, we conclude that the
record contains abundant evidence of his involvement in the drug
conspiracy charged in Count One, particularly through the
testimony of his co-conspirators and the undercover officer who
interacted with the conspiracy firsthand. See Hickman, 626 F.3d
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at 763 (elements of conspiracy). With regard to Counts Six and
Fourteen, viewing the evidence in the light most favorable to
the Government, we conclude that the record contains substantial
evidence to support Smith’s knowing and intentional assistance
in facilitating the controlled purchases on those occasions.
See United States v. Alerre, 430 F.3d 681, 689 (4th Cir. 2005)
(discussing elements of distribution of controlled substances);
United States v. Burgos, 94 F.3d 849, 873 (4th Cir. 1996) (en
banc) (describing aiding and abetting in conspiracy context).
As to Count Fifteen, Smith’s primary contention — that
the only evidence adduced to support his conviction was his
presence at the time the weapon and drugs were sold — misses the
mark, as it fails to account for Smith’s co-ownership of the gun
and the gun’s benefits to the February 21 drug sale. Viewing
the evidence in the light most favorable to the Government, we
conclude Smith’s conviction is supported by substantial
evidence. See United States v. Jeffers, 570 F.3d 557, 565 (4th
Cir. 2009) (elements of § 924(c)(1)(A) offense); United States
v. Wilson, 484 F.3d 267, 282 (4th Cir. 2007) (concluding
constructive possession of firearm is sufficient to establish
guilt); United States v. Lomax, 293 F.3d 701, 705 (4th Cir.
2002) (discussing “in furtherance of” requirement).
Next, relying on Fed. R. Evid. 404(b), Smith argues
that the court erred by admitting evidence of a prior robbery.
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Because he did not object on Rule 404(b) grounds in the district
court, we review the admission of this evidence only for plain
error. See United States v. Olano, 507 U.S. 725, 732 (1993).
Our review of the record leads us to conclude that there was no
error — plain or otherwise — in the admission of the evidence of
the prior robbery. See United States v. Queen, 132 F.3d 991,
995-97 (4th Cir. 1997) (providing standard).
Finally, Smith challenges his sentence on both
procedural and substantive grounds. We review a sentence for
reasonableness, applying a deferential abuse-of-discretion
standard. Gall v. United States, 552 U.S. 38, 51 (2007). We
must first ensure that the district court committed no
significant procedural error, such as improper calculation of
the Guidelines range, insufficient consideration of the 18
U.S.C. § 3553(a) (2006) factors and the parties’ sentencing
arguments, and inadequate explanation of the sentence imposed.
United States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010). Only
if the sentence is free of significant procedural error will we
review the substantive reasonableness of the sentence. See id.
Smith argues that the district court should have
attributed to him a lower drug weight, equivalent to 1650.685
grams of powder cocaine. We review for clear error a district
court’s calculation of drug quantity under the Guidelines.
United States v. Slade, 631 F.3d 185, 188 (4th Cir.), cert.
5
denied, 131 S. Ct. 2943 (2011); United States v. Harvey, 532
F.3d 326, 336-37 (4th Cir. 2008) (defining clear error). The
Government must prove drug quantity by a preponderance of the
evidence. United States v. Milam, 443 F.3d 382, 386 (4th Cir.
2006). However, “[i]f the district court relies on information
in the presentence report . . . in making findings, the
defendant bears the burden of establishing that the information
relied on by the district court in making its findings is
incorrect . . . .” United States v. Randall, 171 F.3d 195, 210-
11 (4th Cir. 1999).
Smith provides no rationale explaining why the powder
cocaine properly attributed to him as relevant conduct by the
district court should not have been converted into crack, and we
conclude that Smith has failed to demonstrate that the district
court clearly erred in this regard. See id.; United States v.
Ricco, 52 F.3d 58, 63 (4th Cir. 1995) (approving 100:88 powder-
to-crack conversion ratio). Assuming, as Smith asserts, that
certain transactions should not have been attributed to him,
they have no impact on his Guidelines range. Because the drug
weight is amply supported by the testimony of Smith’s co-
6
defendants, the district court did not clearly err in finding
Smith responsible for 1598.6 grams of crack cocaine. 1
Turning to Smith’s challenge to the district court’s
imposition of a sentencing enhancement for being a manager or
supervisor, see USSG § 3B1.1(b), we review the district court’s
factual finding supporting the role enhancement for clear error.
United States v. Kellam, 568 F.3d 125, 147-48 (4th Cir. 2009).
Smith argues that the evidence did not support the conclusion
that he exercised control over any of the participants in the
conspiracy. We agree. Without considering the pertinent
factors, the district court made only a single finding with
regard to control: “When [Smith] told somebody . . . that he
didn’t give a ‘S’ what he sold the gun for, that was management
control.” (J.A. 661). 2 Given the context of the statement on
which the court relied, as well as Smith’s ownership interest in
the firearm at issue, we conclude that the statement did not
1
To the extent Smith argues that the district court should
have established a lower base offense level based on his policy
disagreement with the crack-to-powder sentencing disparity, the
court could not consider that disagreement in calculating the
applicable Guidelines range. See U.S. Sentencing Guidelines
Manual § 1B1.1 (2010). Nor could the court apply the two-level
adjustment advocated by Smith because the adjustment had been
removed from the commentary to the Guidelines. We express no
view, however, on the propriety of the district court’s
consideration of these arguments in denying Smith’s request for
a variance from the Guidelines range.
2
“J.A.” refers to the joint appendix filed by the parties.
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constitute evidence of Smith’s managerial or supervisory
authority. See Kellam, 568 F.3d at 148 (discussing factors
courts consider in applying § 3B1.1(b) enhancement). Even
considering the additional evidence available in the record, we
conclude that, while the record may have demonstrated a
hierarchical structure in the conspiracy, it failed to provide
evidence of Smith’s exercise of authority over another that
would support the role enhancement. Because the imposition of
the role enhancement was clearly erroneous on the facts
presented, we vacate Smith’s sentence and remand for
resentencing. See Harvey, 532 F.3d at 336-37.
Because we find Smith’s sentence procedurally
unreasonable, we need not reach his arguments regarding the
court’s denial of a variance or the substantive reasonableness
of his sentence. Accordingly, we affirm Smith’s convictions,
vacate his sentence, and remand for resentencing consistent with
this opinion. 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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