UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4740
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
WALTER BROOKS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. John A. Gibney, Jr.,
District Judge. (3:11-cr-00310-JAG-1)
Submitted: April 26, 2013 Decided: May 2, 2013
Before WILKINSON, KING, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Matthew W. Greene, GREENE LAW GROUP, PLLC, Fairfax, Virginia,
for Appellant. Neil H. MacBride, United States Attorney,
Roderick C. Young, Assistant United States Attorney, Richmond,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Walter Brooks was found guilty of one count of
conspiracy to provide inmates prohibited objects, to use a
communication facility in the commission of a felony, and to
bribe a public official, in violation of 18 U.S.C. § 371 (2006);
one count of conspiracy to possess with intent to distribute and
to distribute heroin, in violation of 21 U.S.C.
§§ 841(a)(1), 846 (2006); five counts of providing contraband in
prison and aiding and abetting, in violation of 18 U.S.C.
§§ 1791(a)(1), 2 (2006); and three counts of use of a
communication facility to commit a felony, in violation of 21
U.S.C. § 843(b) (2006). Brooks received an upward variance
sentence of 240 months’ imprisonment. On appeal, he argues:
(1) that he was subjected to double jeopardy; (2) that his § 371
conviction was not supported by sufficient evidence; and
(3) that his sentence was both procedurally and substantively
unreasonable. We affirm.
Brooks’ double jeopardy claim is patently meritless. 1
It appears to be based on his erroneous belief that Count One of
the indictment required proof that Brooks had been convicted of
bribery. First, the language of the indictment itself charges
1
This claim, raised for the first time on appeal, is
reviewed for plain error. United States v. Olano, 507 U.S. 725,
732 (1993).
2
only an agreement to commit bribery, and makes no reference to a
conviction for bribery. This language is sufficient to charge a
violation of 18 U.S.C. § 371. To establish a conspiracy under
18 U.S.C. § 371, the Government must prove only an agreement
between two or more people to commit a crime against the federal
government, and an overt act in furtherance of the conspiracy.
United States v. Kingrea, 573 F.3d 186, 195 (4th Cir. 2009)
(citing United States v. Ellis, 121 F.3d 908, 922 (4th Cir.
1997)). Therefore, the Government need not prove a conviction
for the underlying crime. Even where both the conspiracy
offense and the underlying offense are charged and convictions
result, however, no double jeopardy violation occurs, as “[a]
substantive crime and conspiracy to commit that crime are
‘separate offenses’ for purposes of the Double Jeopardy Clause,
even if they are based on the same underlying incidents.”
United States v. Yearwood, 518 F.3d 220, 227 (4th Cir. 2008).
Thus, Brooks has failed to assert a viable double jeopardy
claim.
Brooks’ challenge to the sufficiency of the evidence
sustaining his § 371 conspiracy conviction also lacks merit. 2 We
2
Because Brooks contested the sufficiency of the evidence
below, our review is de novo. United States v. Penniegraft, 641
F.3d 566, 571 (4th Cir.), cert. denied, 132 S.
Ct. 564 (2011).
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will uphold a guilty verdict that, “viewing the evidence in the
light most favorable to the prosecution, is supported by
substantial evidence.” United States v. Osborne, 514 F.3d 377,
385 (4th Cir. 2008) (internal quotation marks omitted).
Further, we do “not review the credibility of the witnesses and
assume that the jury resolved all contradictions in the
testimony in favor of the government”; a defendant challenging
the sufficiency of the evidence “bears a heavy burden,” as
reversal of a conviction is limited to “cases where the
prosecution’s failure is clear.” United States v. Foster, 507
F.3d 233, 244-45 (4th Cir. 2007).
As stated above, in order to establish a violation of
18 U.S.C. § 371, the Government must prove the existence of an
agreement between two or more people to commit a crime against
the government and an overt act in furtherance of the
conspiracy. Ellis, 121 F.3d 908 at 922. The evidence of a
conspiratorial agreement need not be direct, but may be inferred
from circumstantial evidence. Id. Proof of a “tacit or mutual
understanding” between the conspirators is sufficient to uphold
a conspiracy conviction. Id. (internal quotation marks
omitted).
We find the evidence here sufficient to support
Brooks’ § 371 conviction. During trial, the government elicited
testimony from Brooks’ coconspirators that they worked together
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to smuggle contraband, namely heroin, into federal prison.
Further, the Government demonstrated, through witness testimony,
that the coconspirators used telephones in order to facilitate
the heroin smuggling scheme. Finally, the Government
established that Brooks convinced a prison guard to smuggle
heroin into prison under color of his official title, in
exchange for payment. Therefore, this claim must fail.
Brooks next urges that the sentence imposed was
unreasonable. We review a sentence for reasonableness under a
deferential abuse of discretion standard. Gall v. United
States, 552 U.S. 38, 51 (2007). A reasonableness review
includes both procedural and substantive components. Id. A
sentence is procedurally reasonable where the district court
committed no significant procedural errors, such as improperly
calculating the Guidelines range, failing to consider the 18
U.S.C. § 3553(a) (2006) factors, or insufficiently explaining
the selected sentence. United States v. Boulware, 604 F.3d 832,
837-38 (4th Cir. 2010). The substantive reasonableness of a
sentence is assessed in light of the totality of the
circumstances. Gall, 552 U.S. at 51.
At sentencing, the district court considered evidence,
in the form of testimony and a video, of a fight between Brooks
and other inmates that occurred while Brooks was being held at a
regional jail pending sentencing. Three inmates were sent to
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the hospital as a result of this encounter with Brooks. The
court referred to this conduct more than once in explaining
Brooks’ upwardly variant sentence. Brooks asserts that: (1) the
district court erred in relying on uncharged conduct to enhance
his sentence; (2) his due process rights were violated because
he was unable to confront and cross-examine witnesses against
him at sentencing; and (3) his Fifth Amendment right against
self incrimination was violated because he was constrained from
testifying in his own defense at sentencing for fear of possible
state charges.
There are no limits on “the information concerning the
background, character, and conduct” of a convicted defendant
that the district court may consider in determining an
appropriate sentence. 18 U.S.C. § 3661 (2006). So long as the
district court sentences a defendant within the statutory
maximum authorized by the jury’s findings, a district court can
consider facts that it finds by a preponderance of the evidence.
See United States v. Grubbs, 585 F.3d 793, 798-99 (4th Cir.
2009). Based on the testimony and other evidence presented at
sentencing, the district court concluded that Brooks assaulted
three fellow inmates at the regional jail. In addition to this
assault, the district court also considered each of the
§ 3553(a) factors in turn and discussed how each applied to
Brooks, particularly emphasizing the seriousness of the offense
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of bringing heroin into a prison. Accordingly, the district
court did not err in considering uncharged conduct.
Brooks next argues that his due process rights and
Fifth Amendment privilege against self incrimination were
violated because he was unable to either confront and cross
examine witnesses or testify himself regarding the jail assault.
As the Government correctly noted, Brooks could have called or
cross examined any witness he wanted. Furthermore, the
Confrontation Clause does not apply at sentencing. United
States v. Powell, 650 F.3d 388, 393 (4th Cir.), cert. denied,
132 S. Ct. 350 (2011). As to Brooks’ right against
self-incrimination, this privilege guarantees “only that the
witness not be compelled to give self-incriminating testimony.”
McKune v. Lile, 536 U.S. 24, 35-36 (2002). No such compulsion
occurred here. When a defendant chooses not to testify at
sentencing because of pending uncharged conduct, he takes a risk
that the government’s uncontradicted evidence will be deemed
credible, but his Fifth Amendment right is not implicated.
United States v. Marshall, 719 F.2d 887, 892 (7th Cir. 1983).
Accordingly, we perceive no violation of Brooks’ constitutional
rights at sentencing.
Finally, Brooks argues that the district court erred
in calculating the drug weight attributable to him. We review a
finding of drug quantity for clear error. United States v.
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Kellam, 568 F.3d 125, 147 (4th Cir. 2009). At sentencing, the
government need establish the amount of drugs involved by only a
preponderance of the evidence. United States v. Brooks, 524
F.3d 549, 561-62 (4th Cir. 2008). “Where there is no drug
seizure or the amount seized does not reflect the scale of the
offense, the court shall approximate the quantity of the
controlled substance.” U.S. Sentencing Guidelines Manual
§ 2D1.1, cmt. n.12 (2011).
Brooks alleges that the district court engaged in
improper “rote multiplication” when it determined his drug
quantity by multiplying the amount of drugs found in his
coconspirator’s vehicle by the number of transactions testified
to at trial. Courts have cautioned against “rote
multiplication” in situations where an “estimate of quantity is
multiplied by an estimate of frequency,” noting that “drug
quantities must find specific support in the record.” United
States v. Laboy, 351 F.3d 578, 583 (1st Cir. 2003); see also
United States v. Hickman, 626 F.3d 756, 769 (4th Cir. 2010)
(noting that “where courts have evidence of a number of
transactions, they have been permitted to multiply that number
by an average weight-per-transaction to reach an estimate”).
Here, while the district court did of necessity estimate the
aggregate quantity of drugs, its methodology of multiplying the
known number of transactions by the quantity involved in the
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final transaction and discounting the outcome by a factor of
20%, was well within the wide latitude of discretion afforded
sentencing courts. Therefore, we find that his district court
did not err when calculating the drug weight attributable to
Brooks. We thus find Brooks’ sentence both procedurally and
substantively reasonable.
Accordingly, we affirm the district court’s judgment.
We deny Brooks’ motion for reconsideration of the denial of his
motion to appoint new counsel. We dispense with oral argument
because the facts and legal contentions are adequately presented
in the materials before this court and argument would not aid in
the decisional process.
AFFIRMED
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