UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5800
WESLEY BROWN,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5802
EDWARD JOHNSON,
Defendant-Appellant.
Appeals from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, District Judge.
(CR-95-184-A)
Submitted: August 22, 1996
Decided: September 10, 1996
Before RUSSELL, HALL, and WILLIAMS, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Robert E. Battle, ROBERT E. BATTLE, P.C., Alexandria, Virginia;
Eric M. Weight, WEIGHT & WEIGHT, Alexandria, Virginia, for
Appellants. Helen F. Fahey, United States Attorney, Glenn C. Alex-
ander, Special Assistant United States Attorney, Alexandria, Virginia,
for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Wesley Brown and Edward Johnson were convicted in a bench trial
of possessing more than five grams of crack cocaine with intent to
distribute on August 2, 1994, 21 U.S.C.A. § 841 (West 1981 & Supp.
1996). The district court found them not guilty of conspiracy. Both
appeal their convictions, alleging that the evidence was insufficient.
They appeal their sentences on the grounds that the amount of crack
attributable to each of them as relevant conduct was wrongly calcu-
lated, USSG §§ 1B1.3, 2D1.1,1 and that the district court failed to
resolve their objections to the presentence report. Johnson also con-
tends that two prior sentences for misdemeanors were improperly
included in his criminal history score. We affirm.
The government's evidence at trial showed that on August 2, 1994,
Brown and Johnson met in Woodbridge, Virginia, at the house of
Mary Ashby, who is Brown's sister and Johnson's cousin. Ashby was
then working as a confidential informant. Brown told Ashby he was
going into Washington, D.C., to get crack and asked her for the keys
to her disabled Mustang so he could store the crack in it when he
returned. Brown left with Johnson and a friend of Johnson's. Later in
the evening, police videotaped a car with three men in it which
stopped in front of Ashby's house. At trial, Ashby identified the men
in the video as Brown, who got out of the car, opened the Mustang
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1 United States Sentencing Commission, Guidelines Manual (Nov.
1994).
2
and put something in it, Johnson, who shook hands with Brown after
the Mustang was closed again, and Johnson's friend, who had been
at her house with him earlier. After the men left, police found 9.55
grams of crack in the glove compartment of the Mustang.
A conviction must be sustained if there is substantial evidence to
support it when the evidence and reasonable inferences from it are
viewed in the light most favorable to the government, Glasser v.
United States, 315 U.S. 60, 80 (1942). The government was required
to prove knowing possession of the crack with intent to distribute on
the part of both Brown and Johnson. United States v. Rusher, 966
F.2d 868, 878 (4th Cir.), cert. denied, 506 U.S. 926 (1992). Posses-
sion may be actual or constructive; to show constructive possession,
the defendant must exercise, or have power to exercise, dominion and
control over the item. United States v. Bell, 954 F.2d 232, 235 (4th
Cir. 1992). Dominion and control need not be exclusive to the defen-
dant. United States v. Wright, 991 F.2d 1182, 1187 (4th Cir. 1993).
Ashby and her nephew, Domonic Bradley, testified that both Brown
and Johnson had obtained crack and sold it during 1993 and 1994.
The videotape showed them sharing possession or constructive pos-
session of 9.55 grams of crack. Possession of an amount of drugs too
large for personal use establishes intent to distribute. Rusher, 966
F.2d at 879. Nine grams is an amount consistent with dealing rather
than personal use. United States v. Lamarr, 75 F.3d 964, 973 (4th Cir.
1996), petition for cert. filed, ___ U.S.L.W. ___ (U.S. June 10, 1996)
(No. 95-9398). On the evidence presented, the evidence was sufficient
to convict Brown and Johnson.
Based on trial testimony from Ashby and Bradley and a statement
given by Brown to Drug Enforcement Administration agents after his
arrest, the probation officer recommended that the total relevant con-
duct for both Brown and Johnson was 952 grams of crack. The rec-
ommended base offense level was 38 (500 grams to 1.5 kilograms of
crack). USSG § 2D1.1. In his statement, Brown admitted that he col-
laborated with Johnson in making purchases totalling more than 500
grams of crack for distribution between October of 1993 and August
of 1994. The probation officer suggested that Johnson was responsi-
ble for the whole amount even though he was incarcerated from
December 22, 1993, to March 16, 1994, and under intensive supervi-
sion from March 18, 1994, to June 8, 1994, because he acted in con-
3
cert with Brown and all of Brown's purchases were reasonably
foreseeable to him. See USSG § 1B1.3(a)(1)(B).
On appeal, Appellants argue that in adopting the probation officer's
recommendation the district court considered unreliable evidence,
should have used a clear and convincing standard of proof, and should
not have considered conduct prior to the offense of conviction. We
find none of these arguments persuasive. The testimony given by
Ashby and Bradley was corroborated by Brown's own statement. A
preponderance of the evidence standard is properly used to decide
factual questions at sentencing. McMillan v. Pennsylvania, 477 U.S.
79, 91 (1986). And relevant conduct in drug offenses may include
acts which were outside the count of conviction but part of the same
course of conduct. USSG § 1B1.3(a)(2). Moreover, the Defendants'
due process rights were not violated by the court's consideration of
Brown's statement even though the statement was excluded from evi-
dence at trial2 because they had notice of the statement and the oppor-
tunity to rebut it. United States v. Bowman, 926 F.2d 380, 382 (4th
Cir. 1991). Johnson and Bowman were sentenced together, so John-
son had the opportunity to cross-examine Brown about the statement.
He did not do so.
We find no merit in Appellants' claim that the court failed to
resolve their objections concerning relevant conduct. The district
court's adoption of the recommended finding in the presentence
report adequately resolved the issues they raised because the ruling
was clear. See United States v. Walker, 29 F.3d 908, 911 (4th Cir.
1994).
Last, Johnson objected in his sentencing memorandum to having
two prior sentences of 180 days and 9 months probation for misde-
meanor convictions counted in his criminal history because the Dis-
trict of Columbia records did not show conclusively that he was
represented by counsel. He also suggested that his probationary sen-
tence might have been revoked and a prison term imposed. Under
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2 The statement was not admitted at trial because defense counsel did
not receive until the day of trial an additional incriminating statement by
Brown which was in the agent's notes but not in the DEA report pro-
vided during discovery.
4
Nichols v. United States, 511 U.S. 738, #6D6D 6D# (1994), a prior uncoun-
seled misdemeanor conviction is valid and may be used to enhance
the sentence for a subsequent offense only if no prison term was
imposed. See also Scott v. Illinois, 440 U.S. 367, 373-74 (1979) (no
constitutional right to counsel when no prison term imposed for mis-
demeanor offense).
Johnson conceded at sentencing that the District of Columbia Code
requires that all defendants facing a loss of liberty have representation
unless they waive it, see D.C. Code Ann.§ 11-2602 (1991), but con-
tended that the government had failed to prove that he was repre-
sented. However, he provided no evidence that he lacked
representation in connection with either of the prior convictions or
that his probation had been revoked in the second case. While a
defendant may challenge at sentencing the validity of a prior convic-
tion on the ground that he was denied counsel, Custis v. United States,
511 U.S. 485, ___ (1994), he bears the burden of showing that the
prior conviction is invalid. United States v. Jones, 977 F.2d 105, 110
(4th Cir. 1992), cert. denied, 507 U.S. 939 (1993); see also Parke v.
Raley, 506 U.S. 20, 28-34 (1992) (presumption of regularity attached
to final judgments makes it appropriate that defendant have burden of
showing invalidity of prior plea). Because Johnson failed to show by
a preponderance of the evidence that he lacked counsel, the district
court did not err in awarding criminal history points for both convic-
tions.
We therefore affirm the convictions and sentences. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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