Filed: Jul. 25, 2014
Latest Update: Mar. 02, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4656 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ERIC DION LATHAM, a/k/a E, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Greenville. Terrence W. Boyle, District Judge. (4:12-cr-00084-BO-2) Submitted: July 8, 2014 Decided: July 25, 2014 Before WYNN, FLOYD, and THACKER, Circuit Judges. Affirmed by unpublished per curiam opinion. Jorgelina E. Araneda,
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4656 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ERIC DION LATHAM, a/k/a E, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Greenville. Terrence W. Boyle, District Judge. (4:12-cr-00084-BO-2) Submitted: July 8, 2014 Decided: July 25, 2014 Before WYNN, FLOYD, and THACKER, Circuit Judges. Affirmed by unpublished per curiam opinion. Jorgelina E. Araneda, ..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4656
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ERIC DION LATHAM, a/k/a E,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. Terrence W. Boyle,
District Judge. (4:12-cr-00084-BO-2)
Submitted: July 8, 2014 Decided: July 25, 2014
Before WYNN, FLOYD, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Jorgelina E. Araneda, ARANEDA LAW FIRM, 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Unpublished opinions are not binding precedent in this circuit.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:
Eric Dion Latham was convicted by a jury of conspiracy
to distribute crack cocaine (Count One), in violation of 21
U.S.C. § 846 (2012); possession of a firearm in furtherance of a
drug trafficking offense and aiding and abetting (Count Four),
in violation of 18 U.S.C. §§ 924(c)(1)(A), 2 (2012); and two
counts of possession of a firearm by a convicted felon (Counts
Five and Six), in violation of 18 U.S.C. § 922(g)(1) (2012).
Latham also pled guilty to distribution of crack (Count Three),
in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (2012).
The district court sentenced Latham to a downward variant
sentence of 240 months on Counts One, Three, Five, and Six
followed by a consecutive 60-month sentence on Count Four.
Latham challenges on appeal the sufficiency of the evidence, the
court’s jury instructions on two counts, and his sentence. We
affirm.
Latham asserts that the evidence did not support his
convictions on Counts One, Four, Five, and Six. We review de
novo the denial of a Fed. R. Crim. P. 29 motion for a judgment
of acquittal. United States v. Hickman, 626 F.3d 756, 762 (4th
Cir. 2010). The jury verdict must be sustained when “there is
substantial evidence in the record, when viewed in the light
most favorable to the government, to support the conviction[s].”
United States v. Jaensch,
665 F.3d 83, 93 (4th Cir. 2011)
2
(internal quotation marks omitted). “Reversal for insufficient
evidence is reserved for the rare case where the prosecution’s
failure is clear.” United States v. Beidler, 110 F.3d 1064,
1067 (4th Cir. 1997) (internal quotation marks omitted).
To obtain a conviction for conspiracy to possess with
the intent to distribute a controlled substance, “the Government
must prove the following essential elements: (1) an agreement
between two or more persons to engage in conduct that violates a
federal drug law; (2) the defendant’s knowledge of the
conspiracy; and (3) the defendant’s knowing and voluntary
participation in the conspiracy.” United States v. Green, 599
F.3d 360, 367 (4th Cir. 2010). A defendant may be convicted of
conspiracy without knowing all of its details, as long as he
enters the conspiracy understanding that it is unlawful and
willfully joins in the plan at least once. United States v.
Burgos,
94 F.3d 849, 858 (4th Cir. 1996) (en banc).
After viewing the evidence as a whole, we conclude
that there was sufficient evidence to support the jury’s verdict
on Count One, as the Government presented evidence of a broader
conspiracy beyond one drug sale. Latham maintained a room at a
boarding house that was commonly known as a drug house for at
least a month before the April 3, 2012 controlled buys, and one
of Latham’s co-conspirators informed a confidential informant
that Latham could complete a drug sale if he was not available
3
to do so. The lack of Latham’s conspiracy activity dating back
to April of 2011 is inconsequential. “When the [G]overnment’s
proof diverges to some degree from the indictment but does not
change the crime charged in the indictment, a mere variance
occurs.” United States v. Allmendinger, 706 F.3d 330, 339-40
(4th Cir.), cert. denied,
133 S. Ct. 2747 (2013); see United
States v. Randall,
171 F.3d 195, 203 (4th Cir. 1999). The
variance here was non-fatal because the proof offered by the
Government at trial merely narrowed the time frame of the
conspiracy but did not alter the crime charged in the
indictment, and the variance did not prejudice Latham.
To prove a violation of § 924(c)(1), the Government
must demonstrate that: “(1) the defendant used or carried a
firearm, and (2) the defendant did so during and in relation to
a drug trafficking offense,” United States v. Mitchell, 104 F.3d
649, 652 (4th Cir. 1997), or “that the possession of a firearm
furthered, advanced, or helped forward a drug trafficking
crime.” United States v. Perry,
560 F.3d 246, 254 (4th Cir.
2009) (internal quotation marks omitted). “A defendant is
guilty of aiding and abetting if he has knowingly associated
himself with and participated in the criminal venture.”
Burgos,
94 F.3d at 873 (internal quotation marks omitted). “An active
participant in a drug transaction has the intent needed to aid
and abet a § 924(c) violation when he knows [in advance] that
4
one of his confederates will carry a gun.” Rosemond v. United
States, 134 S. Ct. 1240, 1249 (2014).
After viewing the evidence as a whole, we conclude
that there was sufficient evidence to support the jury’s verdict
on Count Four. The conversation regarding the sale of the
firearm took place during the drug sale, after which Latham
provided the confidential informant with one-half of the agreed
amount of crack. Selling guns and drugs in the same transaction
constitutes “use” of firearm in the context of § 924(c). United
States v. Claude X, 648 F.3d 599, 603-04 (8th Cir. 2011).
Moreover, we have held that, when a drug buyer “‘sweeten[s] the
pot[]’ [by] offering to purchase not only drugs, but . . . [a
gun] as well[,] . . . the firearm facilitates the drug
transaction, making it possible for the drug buyer to get the
drug seller to take the risks inherent in selling contraband.”
United States v. Lipford,
203 F.3d 259, 267 (4th Cir. 2000).
To support a conviction for being a felon in
possession of a firearm under § 922(g)(1), the Government must
prove the following elements: “(1) the defendant previously had
been convicted of a . . . [felony]; (2) the defendant knowingly
possessed . . . the firearm; and (3) the possession was in or
affecting commerce, because the firearm had travelled in
interstate or foreign commerce at some point during its
existence.” United States v. Moye, 454 F.3d 390, 395 (4th Cir.
5
2006) (en banc) (internal quotation marks omitted). Although
Latham disputes that he possessed the firearms at issue, we
conclude that there was sufficient evidence to support the
jury’s verdict on Counts Five and Six. See United States v.
Lawing, 703 F.3d 229, 240 (4th Cir. 2012) (discussing possession
element of offense), cert. denied,
133 S. Ct. 1851 (2013).
Latham next challenges the district court’s
instructions to the jury regarding Counts Five and Six. “[T]he
. . . decision to give or refuse to give a jury instruction [is
reviewed] for abuse of discretion.” United States v. Sarwari,
669 F.3d 401, 410-11 (4th Cir. 2012); see United States v.
Passaro,
577 F.3d 207, 221 (4th Cir. 2009) (discussing standard
in reviewing refusal to give proffered instruction). We hold
that the district court did not abuse its discretion in refusing
Latham’s proffered “knowing” instruction because a conviction
under § 922(g)(1) does not require a defendant’s knowledge of
either his felon status or the firearm’s interstate nexus as an
element of the offense. United States v. Langley,
62 F.3d 602,
605‐06 (4th Cir. 1995). Moreover, the district court correctly
instructed the jury that it must find Latham actively or
constructively possessed the firearms to sustain a conviction on
each count.
Latham also challenges the district court’s refusal to
provide the jury with instructions regarding an entrapment
6
defense. “We review de novo a district court’s decision to deny
a criminal defendant[’s] [requested] jury instruction on
entrapment.” United States v. Ramos, 462 F.3d 329, 334 (4th
Cir. 2006). “The district court is the gatekeeper; if the
defendant does not produce more than a mere scintilla of
evidence of entrapment, the court need not give the
instruction.” United States v. Hackley,
662 F.3d 671, 681 (4th
Cir. 2011) (internal quotation marks omitted); see
Ramos, 462
F.3d at 334 (discussing elements of entrapment); United
States v. Daniel,
3 F.3d 775, 778 (4th Cir. 1993) (defining
inducement). Our review of the record leads us to conclude,
with confidence, that the evidence did not support an entrapment
instruction. See
Ramos, 462 F.3d at 334-35. Thus, Latham is
entitled to no relief on this claim.
Finally, Latham challenges his sentence. We review a
sentence for reasonableness, applying “an abuse-of-discretion
standard.” Gall v. United States, 552 U.S. 38, 51 (2007). We
first review for “significant procedural error” and, if the
sentence is free from such error, then consider substantive
reasonableness.
Id. Procedural error includes, as is relevant
to this appeal, “improperly calculating[] the Guidelines range.”
Id.
Latham challenges his status as a career offender.
“We review the district court’s . . . classification of [Latham]
7
as a career offender de novo” and review for clear error the
court’s factual findings. United States v. Farrior, 535 F.3d
210, 223 (4th Cir. 2008); see U.S. Sentencing Guidelines Manual
(“USSG”) § 4B1.1(a) (2012) (setting forth what qualifies
defendant as career offender). In designating Latham a career
offender, the probation officer relied on Latham’s June 1996
conviction for attempted criminal sale of a controlled
substance, for which he was sentenced to eighteen to fifty-four
months’ imprisonment. Latham argues only that the challenged
prior conviction did not result in his incarceration during the
fifteen-year period preceding the controlled buy that occurred
on the evening of April 3, 2012.
We hold that the 1996 controlled substance conviction
falls within the requisite time frame and was properly counted
for purposes of the career offender Guideline. The conduct
comprising Count Three occurred exactly fifteen years to the day
following Latham’s release from imprisonment resulting from his
1996 conviction. See USSG § 4A1.2(e)(1) (discussing applicable
time period). Moreover, there was ample evidence that Latham
was engaged in a conspiracy to sell narcotics at least one month
8
prior to April 3, 2012. Accordingly, the district court
correctly designated Latham as a career offender. *
Finally, we conclude that Latham’s sentence is
substantively reasonable. If the sentence is below the properly
calculated Guidelines range, we apply a presumption on appeal
that the sentence is substantively reasonable. United States v.
Susi, 674 F.3d 278, 289 (4th Cir. 2012); see
Gall, 552 U.S. at
51 (defining substantive reasonableness). Such a presumption is
rebutted only if the defendant shows “that the sentence is
unreasonable when measured against the [18 U.S.C.] § 3553(a)
[(2012)] factors.” United States v. Montes-Pineda,
445 F.3d
375, 379 (4th Cir. 2006) (internal quotation marks omitted). We
hold that Latham has not rebutted the presumption afforded his
below-Guidelines sentence and that his sentence is reasonable.
Accordingly, we affirm the district court’s judgment.
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 the decisional process.
AFFIRMED
*
In view of our holding that Latham was properly found to
be a career offender, we need not address his challenges to the
procedural reasonableness of his sentence — specifically, the
drug quantity determination and the individual sentencing
enhancements. See USSG § 4B1.1(c)(2), (3).
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