United States v. Goff

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 09-4876

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

CHERYL L. GOFF,

Defendant – Appellant.

No. 09-4883

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

STEVEN C. GREEN,

Defendant – Appellant.

Appeals from the United States District Court for the Northern
District of West Virginia, at Clarksburg. Irene M. Keeley,
District Judge. (1:09-cr-00021-IMK-2; 1:09-cr-00021-IMK-1)

Submitted: November 3, 2010 Decided: December 10, 2010

Before SHEDD, KEENAN, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.

William L. Pennington, Morgantown, West Virginia; Jacob A.
Manning, DINSMORE & SHOHL, LLP, Wheeling, West Virginia, for
Appellants. Betsy C. Jividen, Acting United States Attorney,
Andrew R. Cogar, Assistant United States Attorney, Clarksburg,
West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:

A jury convicted Cheryl L. Goff and Steven C. Green of

one count each of conspiracy to possess with the intent to

distribute more than five grams of cocaine base, in violation of

21 U.S.C. § 846 (2006), and Goff of one count of maintaining a

drug-involved premises, in violation of 21 U.S.C. § 856(a)(1)

(2006). The district court sentenced Green to 97 months’

imprisonment and Goff to 262 months’ imprisonment on the

conspiracy count and a concurrent term of 240 months’

imprisonment on the maintaining count. On appeal, Goff

maintains that the evidence is insufficient to support her

convictions and that the district court abused its discretion in

imposing sentence. Green maintains that the district court

abused its discretion in denying his motions for a mistrial and

for a new trial and in admitting Goff’s statements against him.

We affirm.

“A defendant challenging the sufficiency of the

evidence to support [her] conviction[s] bears a heavy burden.”

United States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997)

(internal quotation marks omitted). We will uphold the jury’s

verdict “if, viewing the evidence in the light most favorable to

the [G]overnment, it is supported by substantial evidence.”

United States v. Reid, 523 F.3d 310, 317 (4th Cir. 2008).

“Substantial evidence is evidence that a reasonable finder of

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fact could accept as adequate and sufficient to support a

conclusion of a defendant's guilt beyond a reasonable doubt.”

Id. (internal quotation marks omitted). In reviewing for

substantial evidence, we consider both circumstantial and direct

evidence and allow the Government all reasonable inferences from

the facts shown to those sought to be established. United

States v. Harvey, 532 F.3d 326, 333 (4th Cir. 2008). We do not

weigh evidence or review witness credibility. United States v.

Wilson, 118 F.3d 228, 234 (4th Cir. 1997). Rather, it is the

role of the jury to judge the credibility of witnesses, resolve

conflicts in testimony, and weigh the evidence. United

States v. Manbeck, 744 F.2d 360, 392 (4th Cir. 1984).

The offense of maintaining a drug-involved premises

under 21 U.S.C. § 856(a) requires proof that the defendant

(1) knowingly (2) opened, leased, rented, or maintained any

place (3) for the purpose of manufacturing, distributing, or

using any controlled substance. See 21 U.S.C. § 856(a)(1);

United States v. Russell, 595 F.3d 633, 642 (6th Cir.), cert.

denied, ___ S. Ct. ___, No. 09-11002, 2010 WL 2102243

(Oct. 4, 2010); United States v. Verners, 53 F.3d 291, 295

(10th Cir. 1995); United States v. Onick, 889 F.2d 1425, 1431

(5th Cir. 1989). Goff contends that the evidence is

insufficient to support her conviction for the maintaining count

because the Government’s key witness was unbelievable. We

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reject this challenge because witness credibility is not subject

to appellate review, Wilson, 118 F.3d at 234, and, as evidenced

by its finding of guilt, the jury resolved any conflicts in

testimony in favor of the Government and determined the

Government’s witnesses to be sufficiently credible, see Manbeck,

744 F.2d at 392. Additionally, after review of the record, we

conclude there was sufficient evidence from which a jury could

find beyond a reasonable doubt that Goff maintained a residence

for the purpose of distributing cocaine base. Further, because

the evidence is sufficient to support Goff’s conviction on the

maintaining count, we reject her challenge to the sufficiency of

the evidence supporting the conspiracy count, a challenge

premised on the argument that the evidence is insufficient to

support her conviction on the maintaining count.

Goff also challenges her sentence, asserting three

grounds for vacatur: first, that the district court treated the

Sentencing Guidelines as presumptively reasonable; second, that

the court failed to adequately explain its rationale for

imposing sentence; and third, that the sentence is substantively

unreasonable. We review the district court’s sentence under a

“deferential abuse-of-discretion standard.” Gall v. United

States, 552 U.S. 38, 41 (2007). This review entails appellate

consideration of both the procedural and substantive

reasonableness of the sentence. Id. at 51.

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 In determining procedural reasonableness, we first

assess whether the district court properly calculated the

defendant’s Guidelines range. Id. at 49, 51. We must then

consider whether the district court treated the Guidelines as

mandatory, failed to consider the 18 U.S.C. § 3553(a) (2006)

factors and any arguments presented by the parties, selected a

sentence based on “clearly erroneous facts,” or failed to

explain sufficiently the selected sentence. Id. at 50-51;

United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). We

also review whether the district court made “an individualized

assessment based on the facts presented.” Gall, 552 U.S. at 50;

see United States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009)

(holding that, while the “individualized assessment need not be

elaborate or lengthy, . . . it must provide a rationale tailored

to the particular case . . . and [be] adequate to permit

meaningful appellate review” (internal quotation marks

omitted)).

When reviewing for substantive reasonableness, we take

into account the “totality of the circumstances.” Gall,

552 U.S. at 51. We accord a sentence within a properly-

calculated Guidelines range an appellate presumption of

reasonableness. See United States v. Abu Ali, 528 F.3d 210, 261

(4th Cir. 2008). Such a presumption is rebutted only by showing

“that the sentence is unreasonable when measured against the

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[18 U.S.C.] § 3553(a) factors.” United States v. Montes-Pineda,

445 F.3d 375, 379 (4th Cir. 2006) (internal quotation marks

omitted).

In this case, the district court properly calculated

Goff’s sentencing ranges under the U.S. Sentencing Guidelines

Manual (2008), and no record evidence supports Goff’s assertion

that the court treated those ranges as mandatory. In explaining

its decision to impose the concurrent, within-Guidelines

sentences of 262 and 240 months’ imprisonment, the court stated

that it had considered the 18 U.S.C. § 3553(a) sentencing

factors and the arguments of Goff’s counsel concerning Goff’s

resolve to spend time with her family and whether the imposition

of a within-Guidelines sentence would be greater than necessary

to achieve the purposes of sentencing. The court also addressed

Goff’s history and characteristics, the nature and circumstances

of her offense, and the need for the sentence to provide just

punishment for Goff, afford adequate deterrence, and protect the

public. The respective sentences fall within the properly-

calculated Guidelines ranges, and Goff fails to overcome the

appellate presumption of reasonableness this court affords to

these sentences. Accordingly, we conclude that the district

court did not abuse its discretion in sentencing Goff.

Turning to Green’s challenges, he maintains that the

district court erred by denying his motion for a mistrial based

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on the untimely disclosure of the Government’s fingerprint

analysis of a package of cocaine base. According to Green, his

theory of the defense was that the Government was not thorough

in its investigation, and trial counsel highlighted this fact by

eliciting from the Government’s case agent that investigators

had the ability to perform a fingerprint analysis and that, if

such an analysis had showed that the fingerprints of a

co-conspirator were present on the package, such analysis would

negate the co-conspirator’s testimony that Green was always in

possession of the conspiracy’s supply of cocaine base. Thus,

Green asserts that counsel’s credibility was damaged when the

Government elicited from the case agent that a fingerprint

analysis of the package had been performed.

We review the denial of a motion for a mistrial for

abuse of discretion. United States v. Dorlouis, 107 F.3d 248,

257 (4th Cir. 1997) (stating that “denial of a defendant's

motion for a mistrial is within the sound discretion of the

district court and will be disturbed only under the most

extraordinary of circumstances”). “In order for the trial

court’s ruling to constitute such an abuse of discretion, the

defendant must show prejudice.” United States v. Dorsey,

45 F.3d 809, 817 (4th Cir. 1995). Reversal is required only if

there is a clear abuse of discretion and a “reasonable

possibility that the jury's verdict was influenced” by the

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error. United States v. Seeright, 978 F.2d 842, 849 (4th Cir.

1992) (internal quotation marks omitted). Because our review of

the record reveals that Green cannot show any prejudice from the

untimely production of the fingerprint analysis, this claim

fails.

Next, Green challenges under Bruton v. United States,

391 U.S. 123 (1968), the admission of the statements of Goff —

who did not testify at their joint trial — that she knew Green

and other co-conspirators and smoked cocaine base the night

before they were arrested. Green contends that, although the

statements, standing alone, were not incriminating, they

implicated him in the conspiracy when viewed in light of other

evidence presented at trial. Because Green did not object in

the district court to the admission of these statements, our

review is for plain error, which exists when clear or obvious

error affects the defendant’s substantial rights. See United

States v. Massenburg, 564 F.3d 337, 342-43 (4th Cir. 2009).

In Bruton, the Supreme Court held that a criminal

defendant’s Sixth Amendment right to cross-examine witnesses

against him is violated when a non-testifying co-defendant’s

out-of-court statement is admitted at their joint trial to

inculpate the defendant. See Bruton, 391 U.S. at 126. However,

a “Bruton problem exists only to the extent that the

codefendant’s statement in question, on its face, implicates the

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defendant.” United States v. Locklear, 24 F.3d 641, 646

(4th Cir. 1994). Additionally, a statement that is not facially

incriminating is admissible, even if it is incriminating when

linked with other evidence introduced. See Richardson v. Marsh,

481 U.S. 200, 208-11 (1987). Because the challenged statements

were not facially incriminating to Green, their admission did

not violate Bruton. Green therefore fails to show plain error.

Finally, Green contends that the district court erred

in denying his Fed. R. Crim. P. 33 motion for a new trial. We

review a district court’s denial of a motion for a new trial

under Rule 33 for abuse of discretion. United States v.

Fulcher, 250 F.3d 244, 249 (4th Cir. 2001). To warrant a new

trial based on newly-discovered evidence, a defendant must

demonstrate that: (1) the evidence is newly-discovered; (2) he

has been diligent in uncovering it; (3) the evidence is not

merely cumulative or impeaching; (4) the evidence is material to

the issues involved; and (5) the evidence would probably produce

an acquittal. See id. Unless the defendant demonstrates all

five of these factors, the motion should be denied. United

States v. Chavis, 880 F.2d 788, 793 (4th Cir. 1989).

Here, the evidence that formed the basis of Green’s

motion for a new trial — the cellular telephone records of one

of Green’s co-conspirators — was not newly-discovered, as it was

available to Green prior to and during trial. Moreover, because

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Green’s conviction was supported by evidence other than the

testimony of this co-conspirator, we conclude that this is not

one of the “exceptional rare case[s]” where a new trial is

warranted on the basis of impeachment evidence. See United

States v. Custis, 988 F.2d 1355, 1359 (4th Cir. 1993) (internal

quotation marks omitted).

We therefore affirm the district court’s judgments.

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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