Filed: Feb. 19, 2014
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Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4896 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. BRANDON LASHON INGRAM, a/k/a Brandon Lashun Ingram, a/k/a Little B, a/k/a B, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. W. Earl Britt, Senior District Judge. (5:12-cr-00020-BR-1) Argued: December 12, 2013 Decided: February 19, 2014 Before TRAXLER, Chief Judge, and DIAZ and FLOYD, Circuit J
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4896 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. BRANDON LASHON INGRAM, a/k/a Brandon Lashun Ingram, a/k/a Little B, a/k/a B, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. W. Earl Britt, Senior District Judge. (5:12-cr-00020-BR-1) Argued: December 12, 2013 Decided: February 19, 2014 Before TRAXLER, Chief Judge, and DIAZ and FLOYD, Circuit Ju..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4896
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BRANDON LASHON INGRAM, a/k/a Brandon Lashun Ingram, a/k/a
Little B, a/k/a B,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (5:12-cr-00020-BR-1)
Argued: December 12, 2013 Decided: February 19, 2014
Before TRAXLER, Chief Judge, and DIAZ and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Walter Hoytt Paramore, III, THE LAW OFFICES OF W.H.
PARAMORE, III, P.C., Jacksonville, North Carolina, for
Appellant. Joshua L. Rogers, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF:
Thomas G. Walker, United States Attorney, Jennifer P. May-
Parker, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Appellant Brandon Lashon Ingram was found guilty of
conspiring to distribute and possess with the intent to
distribute cocaine base and cocaine. Ingram now challenges his
conviction on evidentiary grounds, contends that the district
court should have granted his pro se motion to dismiss his
attorney, requests a new trial due to ineffective assistance of
counsel, and argues that his sentence is unreasonable. For the
reasons that follow, we affirm the district court’s decisions
and decline to grant Ingram’s request for a new trial.
I.
On January 24, 2012, Ingram was charged in a six-count
indictment with knowingly and intentionally conspiring to
distribute and possess with the intent to distribute at least
280 grams of cocaine base (crack cocaine) and a quantity of
cocaine from September 2009 to December 2011 in violation of 21
U.S.C. §§ 841(a)(1) and 846 (Count One); using and carrying a
firearm during a drug-trafficking crime in violation of 18
U.S.C. § 924(c) (Count Two); knowingly and intentionally
distributing cocaine in violation of 21 U.S.C. § 841(a)(1)
(Counts Three through Five); and knowingly and intentionally
distributing crack cocaine in violation of 21 U.S.C. § 841(a)(1)
(Count Six).
2
On four occasions in November and December 2011,
confidential informant Britt Jaynes made controlled purchases of
cocaine and crack cocaine from Ingram. These purchases were the
bases for Counts Three through Six. Officers arrested Ingram at
a residence on January 6, 2012. They surrounded the home, which
had many people inside, and used a public address system to
order Ingram to exit the building. Detective Jeff Wenhart of
the Fuquay-Varina, North Carolina, Police Department testified
that he could see Ingram running around inside the house, which
was filled with marijuana smoke. After Ingram surrendered,
officers searched the home and found baggies, marijuana blunts,
a gun, and a digital scale. They also saw evidence that someone
had flushed drugs down the toilet. On Ingram’s person, officers
found a plastic baggie, $100 in cash, and a folded one-dollar
bill with cocaine inside.
Following his arrest, Ingram asked why he had been
arrested. Officer Brett Walsh told him that he was arrested due
to his involvement in a drug conspiracy. Ingram replied, “You
know, it’s not me. I am not a big time guy. I am not big time.
You got the wrong guy. I am not the big dealer. . . . You know,
I am just a quarter man,” or a small-time drug dealer. Later,
he told Detective Wenhart, “You all are making me out bigger
than I am. I am not the big guy you think I am.” Although
Detective Wenhart testified that he read Ingram his Miranda
3
rights prior to interviewing him at the police station, the
record is unclear as to whether anyone informed Ingram of his
Miranda rights prior to his earlier conversation with Officer
Walsh. In response to a question from Ingram’s attorney,
Officer Walsh testified that Ingram initiated their exchange.
On May 10, 2012, the government filed a notice of intent to
use evidence of other crimes, wrongs, or acts. In the notice,
the government announced its intention to present evidence of a
December 22, 2005, incident in which Ingram brandished a firearm
during an encounter with United States Marshals, who later found
him in possession of 1.5 grams of crack cocaine and three grams
of marijuana. A footnote in the notice also mentioned the
following four incidents and identified them as evidence that
the government planned to introduce at trial. First, during an
attempt to evade Fuquay-Varina police officers on June 3, 2010,
Ingram ran away on foot after driving his vehicle onto a dead-
end street. Second, on June 19, 2010, Ingram crashed his car
into a tree and ran away on foot while he fled from Holly
Springs, North Carolina, police officers. Police officers later
found cocaine, marijuana, a digital scale, and a gun in his
vehicle. Third, while fleeing from state law enforcement
officials on February 24, 2011, Ingram drove over 100 miles per
hour in a zone with a thirty-five-mile-per-hour speed limit and
struck a law enforcement vehicle. An officer found $2,857 in
4
cash in Ingram’s pocket after officials apprehended him. 1
Fourth, when co-conspirator Steven Dennis warned Ingram not to
carry scales, drugs, and a firearm in his car, Ingram replied,
“[I]t does not matter, I just run from the police anyway.” 2 On
May 25, 2012, the government also filed a motion for an order to
disclose Ingram’s tax returns at trial, arguing that the tax
returns showed a discrepancy between Ingram’s reported income
and his expenditures for cars, guns, and drugs.
The district court issued its rulings regarding the notice
of intent to use evidence of other crimes, wrongs, or acts and
the motion for an order to disclose Ingram’s tax returns on June
4, 2012. The court excluded the December 22, 2005, arrest
because it fell outside the conspiracy’s time frame—September
2009 to December 2011—but permitted the government to admit the
incidents that fell within the time period of the conspiracy.
The court also allowed the government to admit evidence of
Ingram’s tax returns from 2009 and later.
Ingram’s trial took place from June 5 to June 8, 2012. The
government’s case included testimony from three co-conspirators:
1
Although the fact that officers found cash in Ingram’s
pocket during this incident appears in the record, the
government did not include this information in the notice.
2
During his testimony at trial, Dennis paraphrased Ingram
slightly differently: “He said that he didn’t—it didn’t matter
because he was going to run from the police anyway.”
5
Mario Jones, Terrill Owens, and Dennis. Jones began dealing
crack cocaine in 2006 or 2007 in Fuquay-Varina and engaged in
three drug deals with Ingram, at least one of which took place
at the home of Kino Wooten. Jones also witnessed Ingram selling
drugs to others at least ten times. Owens met Ingram at
Wooten’s home in 2010, when Owens, Wooten, and Bruce Douglas
each purchased five grams of crack cocaine from Ingram. In
subsequent drug deals, Owens purchased twenty-eight grams of
crack cocaine from Ingram, and Owens and Douglas each purchased
fourteen grams of crack cocaine from Ingram. Owens testified
that, during the latter deal, Ingram was carrying a firearm.
Owens also witnessed Ingram selling drugs on at least two other
occasions. Dennis met Ingram at Wooten’s home in late 2009,
when Ingram purchased one gram of cocaine from Dennis. In late
2009 or 2010, Dennis accompanied Ingram to a Wal-Mart, where
Ingram sold a customer 3.5 grams of crack cocaine. Dennis
testified that, in July 2010, Ingram brandished a firearm and
stole 4.5 ounces of crack cocaine from him. Dennis saw Ingram
sell crack cocaine about ten times—usually at Wooten’s home—and
told law enforcement officials that Ingram was “supplying the
vast majority of people in Fuquay-Varina.” Based on Jones’s,
Owens’s, and Dennis’s testimonies alone, Detective Wenhart
calculated that Ingram had distributed and possessed with the
6
intent to distribute 295 grams of crack cocaine and one gram of
powder cocaine.
The government’s case also referred to the following two
incidents. On January 27, 2010, officers arrived to assist
Ingram after he was shot in the hip while driving his vehicle.
As Officer Randall Packard of the Durham, North Carolina, Police
Department helped Ingram, he noticed several bags of drugs in
the car, containing marijuana, cocaine, and crack cocaine. A
search also revealed a folded one-dollar bill containing
cocaine, a marijuana blunt, a digital scale, and $1,670.03 in
cash. On September 2, 2011, Officer Mitchell Ham of the Holly
Springs Police Department pulled over Ingram and smelled
marijuana. Ham arrested Ingram and searched the vehicle.
During the search, Ham found a marijuana blunt, a scale
containing cocaine residue, 0.1 grams of cocaine, a one-dollar
bill with white powder on it, two cellular telephones, and $238
in cash.
After the government rested, Ingram moved for acquittal
under Federal Rule of Criminal Procedure 29(a). The district
court denied Ingram’s motion. The jury then returned a verdict
of guilty on Count One and Counts Three through Six and a
verdict of not guilty on Count Two. On August 8, 2012, Ingram
filed a pro se motion to dismiss his attorney. The district
7
court held a hearing on the motion on September 4, 2012, and
denied Ingram’s motion.
In the Presentence Investigation Report (PSR), a probation
officer assigned Ingram a base offense level of 32 because he
was responsible for the cocaine equivalent of at least 1000
kilograms but less than 3000 kilograms of marijuana. To this
base offense level, the probation officer added two levels for
possession of a firearm, two levels for use of violence or
making a credible threat to use violence, two levels for
maintaining premises for the purpose of manufacturing or
distributing a controlled substance, and two levels for
recklessly creating a substantial risk of death or serious
bodily injury to another person in the course of fleeing from
law enforcement officials. These additions brought Ingram’s
adjusted offense level to 40. Ingram’s career offender status
placed him in criminal history category VI, resulting in a
Sentencing Guidelines range of 360 months’ to life imprisonment
for Count One and 240 months’ imprisonment for Counts Three
through Six.
Ingram objected to the PSR on the basis that the probation
officer should not have included 127.58 grams of crack cocaine
that he stole from Dennis in his drug amount total. The
district court addressed this argument during Ingram’s
sentencing hearing on November 5, 2012. The court found that a
8
preponderance of the evidence demonstrated that Ingram had
robbed Dennis, and it adopted the PSR’s factual findings and
Guidelines recommendation. The court then sentenced Ingram to
360 months’ imprisonment for Count One and 240 months’
imprisonment for Counts Three through Six, to run concurrently.
Ingram filed a timely notice of appeal. On appeal, Ingram
challenges his conviction on evidentiary grounds, contending
that (1) the evidence was insufficient to prove that he
conspired to distribute and possess with the intent to
distribute at least 280 grams of crack cocaine and (2) the
district court abused its discretion by admitting evidence of
his tax returns and attempts to evade law enforcement. Ingram
also asserts that the district court should have granted his pro
se motion to dismiss his attorney, he is entitled to a new trial
due to ineffective assistance of counsel, and his sentence is
procedurally unreasonable. We have jurisdiction pursuant to 28
U.S.C. § 1291 and 18 U.S.C. § 3742(a).
II.
We turn first to the question of whether the evidence was
sufficient to prove that Ingram conspired to distribute and
possess with the intent to distribute at least 280 grams of
crack cocaine and a quantity of cocaine. When an appellant
claims that the evidence was insufficient to support his or her
9
conviction, we “must uphold a jury verdict if there is
substantial evidence, viewed in the light most favorable to the
Government, to support it.” United States v. Cardwell, 433 F.3d
378, 390 (4th Cir. 2005). 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.’”
Id. (quoting United States v. Burgos,
94
F.3d 849, 862 (4th Cir. 1996) (en banc)). Ingram contends that
the evidence is insufficient to prove the conspiracy charge for
two reasons. First, he argues that “there was no evidence
offered that co-conspirators[] Jones, Owens, and Dennis had any
drug[-]related relationship,” or, “[i]n other words, there is no
evidence in the record that Mario Jones, Ter[r]ill Owens, and
Steven Dennis had sold drugs to one another.” Second, Ingram
asserts that the evidence shows he was responsible for only
275.3 grams of crack cocaine, not at least 280 grams.
To prove conspiracy, the government must “establish beyond
a reasonable doubt that (1) an agreement to distribute and
possess cocaine [and crack cocaine] with intent to distribute
existed between two or more persons; (2) [Ingram] knew of the
conspiracy; and (3) [Ingram] knowingly and voluntarily became a
part of this conspiracy.” United States v. Hackley, 662 F.3d
671, 678-79 (4th Cir. 2011) (quoting United States v. Yearwood,
518 F.3d 220, 225-26 (4th Cir. 2008)) (internal quotation marks
10
omitted). Although a “knowing and voluntary agreement” is an
element of the crime of conspiracy, conspirators need not know
“all of the details of the conspiracy” as long as they know the
conspiracy’s “essential object.” Id. at 679 (quoting United
States v. Goldman,
750 F.2d 1221, 1227 (4th Cir. 1984))
(internal quotation marks omitted); see also
Burgos, 94 F.3d at
858 (“[A] defendant properly may be convicted of conspiracy
without full knowledge of all of [the conspiracy’s] details, but
if he joins the conspiracy with an understanding of the unlawful
nature thereof and willfully joins in the plan on one occasion,
it is sufficient to convict him of conspiracy, . . . even though
he played only a minor part.” (second alteration in original)
(quoting United States v. Roberts,
881 F.2d 95, 101 (4th Cir.
1989))). “Evidence of a buyer-seller relationship, standing
alone, is insufficient to support a conspiracy conviction.”
Hackley, 662 F.3d at 679 (quoting United States v. Townsend,
924
F.2d 1385, 1394 (7th Cir. 1991)) (internal quotation marks
omitted). However, “evidence of a continuing buy-sell
relationship when coupled with evidence of large quantities of
drugs, or ‘continuing relationships and repeated transactions,’
creates a reasonable inference of an agreement.”
Id. (quoting
United States v. Reid,
523 F.3d 310, 317 (4th Cir. 2008)).
Contrary to Ingram’s assertions, the government did not
need to prove that Jones, Owens, and Dennis “had sold drugs to
11
one another”; the government simply needed to show that Ingram
knew the conspiracy’s essential object—distributing and
possessing cocaine and crack cocaine—and voluntarily agreed with
other people to participate in the conspiracy. According to
Jones’s, Owens’s, and Dennis’s testimonies, Wooten allowed
Ingram to repeatedly distribute cocaine and crack cocaine from
his home. Jones and Owens also testified that they engaged in
or witnessed multiple drug deals involving Ingram, and Owens and
Dennis indicated that Wooten purchased drugs from Ingram on
multiple occasions. In light of this evidence, Ingram’s
argument that the evidence was insufficient to show that Ingram
knowingly and voluntarily agreed to participate in a drug
distribution and possession conspiracy lacks merit.
Ingram also avers that the evidence was insufficient to
support a finding that he conspired to distribute and possess
with the intent to distribute the amount of crack cocaine in
question: at least 280 grams. Citing the PSR’s findings, which
the district court adopted for sentencing purposes, Ingram
argues that he is accountable for distributing and possessing
with the intent to distribute only 275.3 grams of crack cocaine.
Detective Wenhart indicated that Ingram had distributed and
possessed with the intent to distribute 295 grams of crack
cocaine and one gram of powder cocaine as part of the
12
conspiracy. 3 Viewed in the light most favorable to the
government, this testimony supports the jury’s conclusion.
Furthermore, the fact that the district court deviated from the
jury’s determination for sentencing purposes does not indicate
that the evidence was insufficient to support the jury’s
verdict. As this Court held in United States v. Young, 609 F.3d
348 (4th Cir. 2010), “beyond establishing the maximum sentence,
the jury’s drug-quantity determination place[s] no constraint on
the district court’s authority to find facts relevant to
sentencing,”
id. at 357. Because the jury’s conclusion that
Ingram was responsible for at least 280 grams of crack cocaine
did not constrain the district court’s sentencing determination,
we decline to assume that the district court’s finding implies
any weakness in the jury’s assessment. We therefore hold that
the evidence was sufficient to prove that Ingram conspired to
3
During his testimony, Officer Wenhart determined that
Ingram participated in transactions involving 296 grams of
drugs, but he did not specify whether the 296-gram total
included only crack cocaine. Officer Wenhart reached this
amount by converting the drug quantities Jones, Owens, and
Dennis mentioned during their testimonies from ounces to grams
and adding the figures together. Although Officer Wenhart did
not consistently specify whether the quantities in question
referred to crack cocaine, Jones, Owens, and Dennis each
supplied this information during their testimonies. Cross-
referencing Officer Wenhart’s testimony and Jones’s, Owens’s,
and Dennis’s testimonies allowed us—and, presumably, the jury—to
determine that the 296-gram total included 295 grams of crack
cocaine and one gram of powder cocaine.
13
distribute and possess with the intent to distribute at least
280 grams of crack cocaine and a quantity of cocaine.
III.
Next, we consider Ingram’s second evidentiary argument:
that the district court erred by admitting evidence of his tax
returns and attempts to evade law enforcement under Federal Rule
of Evidence 404(b). “Rule 404(b) limits only the admission of
evidence of acts extrinsic to the one charged, but does not
limit the admission of evidence of intrinsic acts.” United
States v. Lighty, 616 F.3d 321, 352 (4th Cir. 2010). Acts are
“intrinsic” when they are “inextricably intertwined [with the
charged crime] or both acts are part of a single criminal
episode or the other acts were necessary preliminaries to the
crime charged.”
Id. (quoting United States v. Chin,
83 F.3d 83,
87 (4th Cir. 1996)) (internal quotation marks omitted).
“[E]vidence is inextricably intertwined with the evidence
regarding the charged offense if it forms an integral and
natural part of the witness’s accounts of the circumstances
surrounding the offenses for which the defendant was indicted.”
Id. (alteration in original) (quoting United States v. Edouard,
485 F.3d 1324, 1344 (11th Cir. 2007)) (internal quotation marks
omitted). For acts that do not qualify as “intrinsic,” this
14
Court outlined a test for determining admissibility under Rule
404(b) in United States v. Queen, 132 F.3d 991 (4th Cir. 1997):
(1) The evidence must be relevant to an issue, such as
an element of an offense, and must not be offered to
establish the general character of the defendant. In
this regard, the more similar the prior act is (in
terms of physical similarity or mental state) to the
act being proved, the more relevant it becomes.
(2) The act must be necessary in the sense that it is
probative of an essential claim or an element of the
offense. (3) The evidence must be reliable. And
(4) the evidence’s probative value must not be
substantially outweighed by confusion or unfair
prejudice in the sense that it tends to subordinate
reason to emotion in the factfinding process.
Id. at 997. We generally review decisions regarding the
admissibility of evidence for abuse of discretion.
Id. at 995.
A. Tax Returns
Although Ingram challenged the admissibility of the tax
returns on the basis of Federal Rule of Evidence 403 below, he
raises his Rule 404(b) argument for the first time on appeal. 4
We therefore review the district court’s decision to admit the
evidence for plain error. United States v. Bernard, 708 F.3d
583, 588 (4th Cir. 2013). Under the plain error standard, we
may—but are not required to—correct the district court’s error
4
The government contends that the tax returns do not relate
to a prior bad act, rendering Ingram’s Rule 404(b) argument
inappropriate. However, because the government used the tax
returns as evidence that Ingram had misstated his income, the
returns implicate a bad act and Rule 404(b) applies.
15
if the error was plain and affected Ingram’s “substantial
rights.” United States v. Olano, 507 U.S. 725, 732, 735 (1993).
Assuming for the sake of argument that Ingram’s
misrepresentations regarding his income were not intrinsic to
the conspiracy charge, we turn to the Queen test. First, the
government sought to admit the tax returns to show that Ingram’s
“financial means far exceeded his legal income,” indicating that
he had income from other sources—such as drug sales—which he
purposefully hid. The tax returns were therefore relevant for
non-character purposes, such as proving Ingram’s knowledge of
the conspiracy and his absence of mistake in participating in
it. See United States v. Grandison, 783 F.2d 1152, 1156 (4th
Cir. 1986) (“It is clear that evidence of unexplained wealth is
relevant in a narcotics prosecution as evidence of illegal
dealings and ill-gotten gains.”). Second, the tax returns were
“probative of . . . an element of the offense.”
Queen, 132 F.3d
at 997. As we explain above, knowledge of the conspiracy and
voluntary participation in it are elements of the offense in
this case, see
Hackley, 662 F.3d at 678-79, and, as we note
earlier in this paragraph, the tax returns certainly speak to
these elements. The third Queen factor—the evidence’s
reliability—is not at issue on appeal. We therefore turn to the
fourth Queen factor: whether the “evidence’s probative value
. . . [is] substantially outweighed by confusion or unfair
16
prejudice in the sense that it tends to subordinate reason to
emotion in the factfinding process.” Queen, 132 F.3d at 997.
After hearing Ingram’s argument that the tax return evidence was
highly prejudicial because it would cause the jury to assume
that Ingram was a drug dealer, the district court found that the
probative value of the tax returns from the time period of the
conspiracy outweighed their prejudicial effect. In light of the
bearing that the tax returns have on Ingram’s knowledge of, and
voluntary participation in, the conspiracy, we agree with the
district court’s assessment and conclude that the fourth Queen
factor does not bar the evidence. Accordingly, we hold that the
district court did not err—much less plainly err—under Rule
404(b) by admitting the tax returns.
B. Flight Evidence
Ingram also challenges the district court’s decision to
admit evidence of his attempts to escape law enforcement
officials. The June 3, 2010, June 19, 2010, and February 24,
2011, incidents each involved Ingram fleeing from law
enforcement officials. Officers found drugs, a digital scale,
and a gun in his vehicle during the June 19, 2010, incident, and
they found cash on his person during the February 24, 2011,
incident. At some point, Ingram told Dennis that “it d[id] not
matter” that he kept scales, drugs, and a firearm in his car
17
because he “was going to run from the police anyway.” 5 Based on
this statement and Ingram’s behavior, the government sought to
establish that fleeing law enforcement officers was Ingram’s
strategy for preventing them from discovering the drugs and drug
paraphernalia that he habitually kept in his vehicle.
All of the incidents in question occurred during the time
period of the conspiracy and illustrated Ingram’s self-
proclaimed method of preventing the police from discovering
evidence of his drug possession and distribution—in other words,
evidence of the conspiracy. Because the flight incidents and
statement were “part of [the] single criminal episode” that
constituted the conspiracy, they are intrinsic to the conspiracy
charge and fall outside Rule 404(b)’s ambit. See Lighty, 616
F.3d at 352; see also United States v. Dozie,
27 F.3d 95, 97
(4th Cir. 1994) (per curiam) (holding that Rule 404(b) did not
apply to allegations of insurance fraud that occurred within the
same time frame as the charged conspiracy to commit mail fraud).
Consequently, the district court did not abuse its discretion by
allowing the government to introduce this evidence.
5
Dennis did not specify when this conversation took place,
but we assume it occurred between late 2009 and July 2010.
Ingram and Dennis met in late 2009, and the two men stopped
associating with each other after Ingram robbed Dennis in June
or July 2010. Ingram therefore presumably made the statement
during the time frame of the conspiracy.
18
IV.
In addition to making these evidentiary arguments, Ingram
contends that the district court erred by denying his motion to
dismiss counsel. We review district courts’ decisions to deny
such motions for abuse of discretion. Hackley, 662 F.3d at 685.
In doing so, we consider “(1) ‘the timeliness of the motion’;
(2) ‘the adequacy of the court’s inquiry into the defendant’s
complaint’; and (3) ‘whether the attorney/client conflict was so
great that it had resulted in total lack of communication
preventing an adequate defense.’”
Id. (quoting United States v.
Mullen,
32 F.3d 891, 895 (4th Cir. 1994)).
We turn first to the timeliness of Ingram’s motion. This
Court typically deems such a motion to be untimely when the
defendant files it days before trial or the motion “proceeds
from a transparent ploy to bring about delay.” Compare id.
(affirming denial of motion filed one week before trial), and
United States v. Gallop,
838 F.2d 105, 108 (4th Cir. 1988)
(affirming denial of motion filed five days before trial), with
United States v. Watkins, 153 F. App’x 201, 202 (4th Cir. 2005)
(noting that motion filed more than a month prior to sentencing
was timely). Ingram filed his motion to dismiss counsel on
August 8, 2012—nearly three months before sentencing.
Furthermore, neither the motion itself nor the district court’s
motion hearing suggest that Ingram filed the motion to delay his
19
sentencing hearing. We therefore conclude that the first prong
of the above test weighs in Ingram’s favor.
Ingram does not challenge the adequacy of the district
court’s inquiry into his complaint, which, as we describe below,
was quite thorough. We therefore turn to the third prong of the
above test: whether Ingram’s conflict with his attorney was so
great that it resulted in a communication breakdown that
prevented an adequate defense. Ingram contends that his
conflict with his attorney warranted dismissing counsel for the
following reasons 6: (1) he was unable to reach his attorney via
telephone on several occasions because his attorney’s office did
not accept collect calls, (2) he did not hear from his attorney
between the trial and his interview with the probation office,
(3) defense counsel said he would remove himself from Ingram’s
case after sentencing, (4) defense counsel failed to introduce
certain exculpatory evidence, although Ingram did not specify
what that evidence was in his brief, in his motion, or during
the hearing on that motion, and (5) defense counsel did not use
Ingram’s suggestions regarding what material to include in his
closing argument.
6
Ingram does not provide specific details regarding his
lack of communication with his attorney in his brief. Instead,
he refers to his motion and statements he made during the
district court’s hearing on that motion. We draw these reasons
from those sources.
20
While addressing Ingram’s arguments regarding whether a
total breakdown of communication occurred and prevented an
adequate defense, the district court noted that Ingram’s
attorney had obtained a not-guilty verdict on Count Two. The
court further explained that defense counsel’s failure to
communicate with Ingram for twenty days after trial was
understandable because defense counsel had no need to speak with
Ingram until the PSR arrived. Additionally, the court
determined that Ingram’s attorney was “in the best position, now
having tried [his] case, to help [him] through this critical
part of [his] defense up until [his] sentencing.” In response
to Ingram’s argument that defense counsel planned to stop
representing him, the court explained that defense counsel could
not remove himself from the case without the court’s permission.
Finally, the court noted that defense counsel was entitled to
act contrary to Ingram’s suggestions when crafting his closing
argument to provide the best possible representation.
The record does not indicate that the communication issues
Ingram describes had any impact on his defense. Accordingly, we
have no reason to believe that the alleged communication lapses
prevented Ingram’s attorney from properly assisting him during
the judicial proceedings in question. See United States v.
Hanley, 974 F.2d 14, 17 (4th Cir. 1992) (discerning no total
lack of communication preventing an adequate defense because the
21
defendant’s lawyer properly assisted him during trial); Gallop,
838 F.2d at 109 (same). We therefore agree with the district
court’s assessment and conclude that Ingram’s conflict with his
attorney did not result in a total lack of communication that
prevented an adequate defense. In light of the adequacy of the
district court’s inquiry and the absence of a meaningful
communication breakdown between Ingram and his attorney, we hold
that the district court did not abuse its discretion in denying
Ingram’s motion to dismiss counsel.
V.
Next, Ingram avers that his attorney provided ineffective
assistance and asks us to grant a request for a new trial.
Defendants may raise claims of ineffective assistance of counsel
on direct appeal “only where the record conclusively establishes
ineffective assistance.” United States v. Baptiste, 596 F.3d
214, 216 n.1 (4th Cir. 2010). “Otherwise, the proper avenue for
such claims is a 28 U.S.C. § 2255 motion filed with the district
court.”
Id. To bring a successful ineffective assistance of
counsel claim, Ingram must satisfy the two-pronged test that the
Supreme Court established in Strickland v. Washington,
466 U.S.
668 (1984). Under that test, Ingram first “must show that his
counsel’s performance ‘fell below an objective standard of
reasonableness’ in light of prevailing professional norms.”
22
Lawrence v. Branker, 517 F.3d 700, 708 (4th Cir. 2008) (quoting
Strickland, 466 U.S. at 688). Second, Ingram must demonstrate
that “there is a reasonable probability that but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.”
Id. (quoting Strickland, 466 U.S. at 694)
(internal quotation marks omitted).
Ingram contends that his attorney’s performance was
deficient in the following ways: (1) he failed to challenge
Ingram’s confession to being a drug dealer on constitutional
grounds prior to trial via a motion to suppress; (2) he did not
develop the issue of custodial interrogation by voir dire; and
(3) he asked Officer Walsh if he had initiated the conversation
during which Ingram confessed to being a drug dealer, and
Officer Walsh answered, “No.” As we explain above, although
Detective Wenhart testified that he read Ingram his Miranda
rights prior to their exchange, it is unclear whether anyone
informed Ingram of his Miranda rights prior to his earlier
admissions to Officer Walsh.
Even if we assume for the sake of argument that Ingram can
satisfy the first Strickland factor, his ineffective assistance
of counsel claim fails under Strickland’s second prong. The
record does not establish a reasonable probability that the
trial’s outcome would have been different if defense counsel had
not committed the alleged errors. Even without Ingram’s
23
confession, the evidence against him was overwhelming. The
government’s case featured, among many other things, damaging
testimony from multiple co-conspirators and testimony from an
individual who conducted four controlled purchases of drugs from
Ingram. We therefore conclude that the record on appeal does
not conclusively establish ineffective assistance of counsel.
Although we decline to grant Ingram’s request for a new trial,
we note that our determination does not affect Ingram’s right to
pursue relief under § 2255 should he choose to do so.
VI.
Finally, Ingram argues that his sentence is procedurally
unreasonable because the district court drew part of the drug
quantity it attributed to him from Dennis’s testimony, which
Ingram contends was unreliable. We evaluate sentences “under an
abuse-of-discretion standard, which translates to review for
‘reasonableness.’” United States v. Mendoza-Mendoza, 597 F.3d
212, 216 (4th Cir. 2010) (quoting United States v. Booker,
543
U.S. 220, 261-62 (2005)). “Sentences must be both procedurally
and substantively reasonable.” United States v. Crawford,
734
F.3d 339, 342 (4th Cir. 2013). We will vacate a sentence on
procedural grounds if the district court “select[ed] [the]
sentence based on clearly erroneous facts.” United States v.
Medina-Campo,
714 F.3d 232, 234 (4th Cir. 2013) (quoting Gall v.
24
United States, 552 U.S. 38, 51 (2007)) (internal quotation marks
omitted).
Ingram avers that the district court erred in utilizing
Dennis’s testimony because (1) the testimony was unreliable due
to Dennis's cooperation with prosecutors to obtain a reduced
sentence and (2) no other evidence corroborated Dennis’s
account. In other words, Ingram contends that the district
court should not have attributed the drug quantity in question
to Ingram based on Dennis’s testimony alone because Dennis was
not a credible witness. However, “when a district court’s
factual finding is based upon assessments of witness
credibility, such finding is deserving of the highest degree of
appellate deference.” United States v. Thompson, 554 F.3d 450,
452 (4th Cir. 2009) (quoting U.S. Fire Ins. Co. v. Allied Towing
Corp.,
966 F.2d 820, 824 (4th Cir. 1992)) (internal quotation
marks omitted). “[E]ven the testimony of a potentially biased
witness is sufficient to support a finding of fact,” and “the
district court may credit testimony that is ‘totally
uncorroborated and comes from an admitted liar, convicted felon,
or large scale drug-dealing, paid government informant.” United
States v. Johnson,
489 F.3d 794, 797 (7th Cir. 2007) (quoting
United States v. Romero,
469 F.3d 1139, 1147 (7th Cir. 2006))
(internal quotation marks omitted); see also United States v.
Ramseur, 378 F. App’x 260, 266 (4th Cir. 2010) (noting that the
25
district court can find facts for sentencing purposes based on
statements from “convicted felons seeking a sentence
reduction”). In light of this deferential standard, Ingram
cannot successfully paint his sentence as procedurally
unreasonable by attacking Dennis’s testimony based on
credibility alone. We therefore affirm Ingram’s sentence.
VII.
For the abovementioned reasons, we affirm the district
court’s evidentiary decisions, its denial of Ingram’s motion to
dismiss counsel, and Ingram’s sentence. We also decline to
grant Ingram’s request for a new trial.
AFFIRMED
26
