Filed: Feb. 10, 2016
Latest Update: Mar. 02, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-4944 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JOHN DAVID WHITE, Defendant - Appellant. Appeal from the United States District Court for the District of Maryland, at Greenbelt. George J. Hazel, District Judge. (8:13-cr-00356-GJH-1) Submitted: January 29, 2016 Decided: February 10, 2016 Before MOTZ and THACKER, Circuit Judges, and DAVIS, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Edward Griffi
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-4944 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JOHN DAVID WHITE, Defendant - Appellant. Appeal from the United States District Court for the District of Maryland, at Greenbelt. George J. Hazel, District Judge. (8:13-cr-00356-GJH-1) Submitted: January 29, 2016 Decided: February 10, 2016 Before MOTZ and THACKER, Circuit Judges, and DAVIS, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Edward Griffin..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4944
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOHN DAVID WHITE,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. George J. Hazel, District Judge.
(8:13-cr-00356-GJH-1)
Submitted: January 29, 2016 Decided: February 10, 2016
Before MOTZ and THACKER, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Edward Griffin, ADELPHI LLP, Baltimore, Maryland, for Appellant.
Rod J. Rosenstein, United States Attorney, Nicolas A. Mitchell,
Assistant United States Attorney, Greenbelt, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury convicted John David White of conspiring to possess
and attempt to possess with intent to distribute 500 grams but
less than 5 kilograms of cocaine and 100 grams or more of
heroin, in violation of 21 U.S.C. § 846 (2012); possessing and
attempting to possess with intent to distribute 500 grams or
more of cocaine and 100 grams or more of heroin, in violation of
21 U.S.C. § 841(a) (2012); maintaining a place for the purpose
of distributing controlled substances, in violation of 21 U.S.C.
§ 856(a)(1) (2012); and possessing a firearm in furtherance of a
drug trafficking crime, in violation of 18 U.S.C. § 924(c)
(2012). The district court sentenced White to a total of 248
months’ imprisonment. On appeal, White asserts that the court
improperly denied his pretrial suppression motions; that the
court improperly instructed the jury and constructively amended
the superseding indictment; that insufficient evidence supported
the jury verdict; and that the court improperly calculated his
sentence based on a drug quantity not found by the jury. We
affirm.
I.
White contends that the district court improperly denied
his pretrial motions to suppress evidence seized during searches
of his car and the storage unit and to exclude his postarrest
statements. In evaluating the denial of a suppression motion,
2
“we review the district court’s factual findings for clear error
and its legal conclusions de novo.” United States v. Green, 740
F.3d 275, 277 (4th Cir.), cert. denied,
135 S. Ct. 207 (2014);
see United States v. Span,
789 F.3d 320, 325 (4th Cir. 2015)
(defining clear error). “We construe the evidence in the light
most favorable to the government, as the prevailing party
below.”
Green, 740 F.3d at 277. “We . . . defer[] to a
district court’s credibility determinations, for it is the role
of the district court to observe witnesses and weigh their
credibility during a pre-trial motion to suppress.” United
States v. Patiutka,
804 F.3d 684, 689 (4th Cir. 2015) (internal
quotation marks omitted).
Contrary to White’s assertion on appeal, the record reveals
that police did not execute the search warrant until after it
was obtained. Additionally, noting that White does not dispute
that he was read his Miranda 1 rights, we conclude that he
understood and affirmatively waived those rights. The district
court’s credibility assessment of officer testimony at the
suppression hearing is entitled to deference, and White’s
arguments, which repeat the contentions he raised during the
hearing, are not sufficient to overcome that deference. See id.
1 Miranda v. Arizona,
384 U.S. 436 (1966).
3
Thus, we discern no error in the district court’s denial of
White’s suppression motions. 2
II.
Next, White asserts that the district court erred in
charging the jury because the instructions were provided in
multiple disjunctives despite his being charged in the
conjunctive, thereby subverting a unanimous verdict. White also
asserts that the court broadened the bases for his convictions
by instructing the jury on lesser-included drug quantities.
We review de novo a claim of constructive amendment to an
indictment. United States v. Allmendinger, 706 F.3d 330, 339
(4th Cir. 2013). A constructive amendment occurs when “the
district court, through its instructions to the jury, . . .
broadens the bases for conviction beyond those charged in the
indictment.”
Id. (internal quotation marks omitted). “The key
inquiry is whether the defendant has been tried on charges other
than those made in the indictment against him.”
Id. (internal
quotation marks omitted).
We reject White’s claims. “Courts have uniformly upheld
multiple-object conspiracies, and they have consistently
2
Additionally, to the extent that White challenges the
denial of his motion to set aside the verdict based on the
suppression rulings, we conclude that the district court did not
abuse its discretion. See United States v. Rooks, 596 F.3d 204,
209-10 (4th Cir. 2010) (stating standard).
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concluded that a guilty verdict must be sustained if the
evidence shows that the conspiracy furthered any one of the
objects alleged.” United States v. Bolden, 325 F.3d 471, 492
(4th Cir. 2003). Additionally, “[i]t is well established that
when the Government charges in the conjunctive, and the
statute[s, as here, are] worded in the disjunctive, the district
court can instruct the jury in the disjunctive.” United States
v. Perry,
560 F.3d 246, 256 (4th Cir. 2009). Moreover, in drug-
trafficking offenses, drug quantity is not an element that must
be established for conviction. See United States v. Howard,
773
F.3d 519, 525, 526 (4th Cir. 2014) (stating elements of
conspiracy and possession offenses). If an indictment charges a
particular drug quantity, “[a] defendant . . . can, if the
evidence warrants, be convicted of one of the lesser included
offenses based on a smaller amount of the substance.” United
States v. Cabrera-Beltran,
660 F.3d 742, 753 (4th Cir. 2011)
(internal quotation marks omitted). “Because the lesser
included offense is included in the charged offense, there is no
variance.”
Id.
III.
White also asserts that insufficient evidence supports his
conspiracy and possession convictions. We review the
sufficiency of the evidence de novo. United States v. Palomino-
Coronado,
805 F.3d 127, 130 (4th Cir. 2015). The jury verdict
5
must be sustained “if it is supported by substantial evidence,
viewed in the light most favorable to the government.” Id.
(defining substantial evidence). A defendant challenging the
sufficiency of the evidence to support a conviction bears “a
heavy burden,” and “reversal for insufficiency must be confined
to cases where the prosecution’s failure is clear.”
Id.
(internal quotation marks omitted).
We conclude that White fails to overcome his burden. The
record reveals that the Government presented substantial
evidence at trial establishing that White possessed and
attempted to possess cocaine and heroin. See Howard, 773 F.3d
at 526; United State v. Herder,
594 F.3d 352, 358 (4th Cir.
2010) (defining constructive possession). Moreover, substantial
circumstantial evidence supports White’s conspiracy conviction.
See
Howard, 773 F.3d at 525; United States v. Burgos,
94 F.3d
849, 857 (4th Cir. 1996) (en banc) (discussing nature of
conspiracy and proof required).
IV.
Finally, White asserts that the district court erred in
sentencing him based on a speculative drug quantity. A district
court’s legal conclusions at sentencing are reviewed de novo and
its factual findings are reviewed for clear error. United
States v. Gomez-Jimenez, 750 F.3d 370, 380 (4th Cir.), cert.
denied,
135 S. Ct. 305 (2014), and cert. denied,
135 S. Ct. 384
6
(2014). The court “may consider uncharged and acquitted conduct
in determining a sentence, as long as that conduct is proven by
a preponderance of the evidence.” United States v. Grubbs, 585
F.3d 793, 799 (4th Cir. 2009); see
Perry, 560 F.3d at 258. Our
review of the record reveals no clear error in the court’s drug-
quantity determination for purposes of sentencing.
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
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