Filed: Apr. 26, 2013
Latest Update: Mar. 28, 2017
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4081 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CHRISTOPHER BELL, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Aiken. Margaret B. Seymour, Chief District Judge. (1:08-cr-00730-MBS-3) Argued: February 1, 2013 Decided: April 26, 2013 Before NIEMEYER, DUNCAN, and DIAZ, Circuit Judges. Affirmed by unpublished opinion. Judge Niemeyer wrote the opinion, in whic
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4081 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CHRISTOPHER BELL, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Aiken. Margaret B. Seymour, Chief District Judge. (1:08-cr-00730-MBS-3) Argued: February 1, 2013 Decided: April 26, 2013 Before NIEMEYER, DUNCAN, and DIAZ, Circuit Judges. Affirmed by unpublished opinion. Judge Niemeyer wrote the opinion, in which..
More
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4081
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CHRISTOPHER BELL,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Aiken. Margaret B. Seymour, Chief District
Judge. (1:08-cr-00730-MBS-3)
Argued: February 1, 2013 Decided: April 26, 2013
Before NIEMEYER, DUNCAN, and DIAZ, Circuit Judges.
Affirmed by unpublished opinion. Judge Niemeyer wrote the
opinion, in which Judge Duncan and Judge Diaz joined.
ARGUED: Russell Warren Mace, III, THE MACE FIRM, Myrtle Beach,
South Carolina, for Appellant. John David Rowell, OFFICE OF THE
UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.
ON BRIEF: William N. Nettles, United States Attorney, Jeffrey
Mikell Johnson, Robert F. Daley, Jr., Assistant United States
Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
NIEMEYER, Circuit Judge:
A jury convicted Christopher Bell on one count of
conspiracy to possess with intent to distribute 5 kilograms of
cocaine and 280 grams of cocaine base and on three counts of
possession with intent to distribute a quantity of cocaine. The
district court sentenced him to 380 months’ imprisonment. On
appeal, Bell contends (1) that the superseding indictment on
which he was convicted improperly increased the alleged drug
amounts, in retaliation for his successful appeal, allowing him
to withdraw an earlier guilty plea entered on the original
indictment; (2) that the district court erred in denying his
Batson claim; (3) that the district court erred in failing to
suppress statements that he made pursuant to an allegedly
involuntary Miranda waiver; and (4) that, in sentencing him, the
district court erred in finding that he was a career offender
and in applying various other sentencing enhancements. We find
Bell’s arguments unpersuasive and affirm.
I
Bell contends first that the superseding indictment on
which he was convicted should have been dismissed for
prosecutorial vindictiveness. He claims that the prosecutor
acted with “actual animus” or, alternatively, that the
2
circumstances gave rise to a “presumption of prosecutorial
vindictiveness.”
The original indictment charged Bell in the first of four
counts with conspiracy to distribute 50 grams or more of cocaine
base. Bell pleaded guilty to this conspiracy count, and the
district court sentenced him to 380 months’ imprisonment. After
Bell appealed his conviction, contending that his plea hearing
did not comply with Rule 11, the government agreed to a
withdrawal of his guilty plea and a remand.
After remand, the grand jury returned a superseding
indictment containing the same four counts alleged in the
original indictment. The superseding indictment, however,
increased the drug quantities alleged to be involved in the
conspiracy count from 50 grams or more of cocaine base to 5
kilograms or more of cocaine and 280 grams or more of cocaine
base. It also added allegations of “aiding and abetting” to the
three distribution counts. Bell claimed that these changes were
made in retaliation for his successful appeal, and he filed a
motion to dismiss the indictment. The district court denied the
motion, and Bell proceeded to trial. A jury convicted Bell on
all counts, and the district court again sentenced him to 380
months’ imprisonment.
Bell argues now that these circumstances reveal either
actionable animus against him or at least give rise to a
3
presumption of prosecutorial vindictiveness. The government
explains that it did not obtain the superseding indictment in
retaliation for Bell’s successful appeal, but rather to equalize
the threshold drug amounts in the superseding indictment with
those alleged in the original indictment in light of the newly
enacted Fair Sentencing Act, which took effect August 3, 2010.
It also points out that on the appeal, it consented to a remand.
We have noted that if a prosecutor “responds to a
defendant’s successful exercise of his right to appeal by
bringing a more serious charge against him, he acts
unconstitutionally.” United States v. Wilson, 262 F.3d 305, 314
(4th Cir. 2001). To demonstrate actual vindictiveness, a
defendant must show that the government harbored “vindictive
animus” and that the superseding indictment was brought “solely
to punish” him. Id. at 316 (emphasis in original). A defendant
may gain the benefit of a presumption of vindictiveness by
pointing “to circumstances surrounding the initiation of the
prosecution and show that they ‘pose a realistic likelihood of
vindictiveness.’” Id. at 317 (quoting Blackledge v. Perry,
417
U.S. 21, 27 (1974)).
Although Bell provides no evidence of actual
vindictiveness, he claims that the surrounding circumstances
give him the benefit of a presumption, relying on: (1) the
timing of the superseding indictment following a successful
4
appeal; (2) the increased drug quantities alleged in the amended
conspiracy count; and (3) the addition of the aiding and
abetting allegations in the counts charging actual distribution.
We conclude that the district court did not err in denying
Bell’s motion to dismiss based on prosecutorial vindictiveness.
While the indictment was indeed filed after Bell successfully
challenged his plea hearing, the government recognized the error
and consented to the remand. Moreover, the allegations
increasing the drug amounts comport exactly with new threshold
amounts stated in the Fair Sentencing Act. The Fair Sentencing
Act (“FSA”) altered the threshold quantity of cocaine base
necessary to trigger the mandatory sentencing minimums in 21
U.S.C. § 841(b). Just as the initial indictment alleged the
necessary threshold amounts under pre-FSA law -- 50 grams or
more of cocaine base, see 21 U.S.C. § 841(b) (2006) -- the
superseding indictment alleged the threshold amounts in the FSA
-- 5 kilograms or more of cocaine and 280 grams or more of
cocaine base, see 21 U.S.C. § 841(b) (2012). We conclude that
the district court did not err in finding that the superseding
indictment was brought not because of Bell’s successful appeal
but because of a change in the law.
Also, the addition of the aiding and abetting allegations
to the distribution counts did not add additional charges
against Bell. See United States v. Johnson, 537 F.2d 1170 (4th
5
Cir. 1976). Rather, the allegations simply provided a structure
that facilitated the government’s ability to prove the
previously alleged counts against Bell. We conclude that these
changes were not “sufficiently suggestive of vindictive
prosecution.” Wilson, 262 F.3d at 317.
II
Bell next contends that the government violated Batson v.
Kentucky, 476 U.S. 79 (1986), in exercising its seven peremptory
juror strikes against African Americans. When the government
made the strikes, Bell made a Batson motion, asking the
government “to state any [race] neutral reasons for those
strikes.” When the court directed the request to the
government, the government responded in detail, giving several
reasons for each strike. The court then found that “the
government ha[d] articulated race neutral reasons for the
strike[s]” and therefore denied the motion. Bell contends that
the district court erred in not comparing the government’s
proffered reasons for the strikes to similarly situated jurors
who had not been the subject of a preemptory strike, citing
Miller-El v. Dretke,
545 U.S. 231 (2005), and United States v.
Barnette,
644 F.3d 192 (4th Cir. 2011).
Bell’s argument, however, fails to recognize that he was
required, as a condition of requesting a comparative-juror
6
analysis, to identify comparative jurors for the district court.
See Barnette, 644 F.3d at 205 (requiring a comparative juror
analysis where “the struck black potential jurors bore strong
similarities as well as some differences to nonblack jurors who
were permitted to serve”) (construing Miller-El, 545 U.S. at
247). Here, Bell failed to identify a single nonstruck juror
that would call into doubt the reasons proffered by the
government.
Bell also contends that the government’s exercise of all of
its seven preemptory challenges against African-Americans
“created an inference of purposeful discrimination,” shifting
the burden to the government to demonstrate that its reasons
were not a pretext. Regardless of whether the government’s
conduct actually gave rise to such an inference, the court
nonetheless did call on the government to provide explanations
for each strike. And, with respect to each strike, the
government gave race-neutral explanations, which included past
convictions, lack of education, association with witnesses,
demeanor, and adverse responses on juror questionnaires. The
district court found the government’s explanations credible and
race-neutral, and, based on this record, we cannot find that the
district court clearly erred.
7
III
Bell also contends that the district court erred in denying
his motion to suppress a statement that he made to Special Agent
Matthew E. Morlan of the ATF during an interview on July 25,
2008. At the hearing on Bell’s suppression motion, Special
Agent Morlan testified that before he conducted the interview,
he read a Miranda form to Bell line-by-line and that Bell signed
the waiver voluntarily. After waiving his Miranda rights and
indicating that he wanted to speak with officers, Bell provided
a rundown of his narcotics dealings. Morlan testified that Bell
spoke lucidly and did not appear to be under the influence of
alcohol or drugs.
Bell, however, gave a different account, suggesting that
his Miranda waiver was not voluntary because he had used
cocaine, pills, and alcohol on the day of the interview. Bell
testified first that Special Agent Morlan “just slid [him] the
paper and said, ‘sign it,’ and . . . walked off.” On cross-
examination, however, Bell asserted that he did not remember
having the interview or signing the form because he had been
under the influence of alcohol and drugs.
After the hearing, the district court found the
government’s witnesses credible and, on that basis, denied
Bell’s motion to suppress. We have reviewed the record
8
carefully and cannot conclude that the district court clearly
erred in its factual finding.
IV
Finally, Bell contends that during sentencing, the district
court improperly applied four enhancements authorized by the
Sentencing Guidelines. Based on our review of the record, we
find each of Bell’s arguments unpersuasive.
First, Bell contends that the district court should not
have designated him a career offender under U.S.S.G. § 4B1.1
because the sentences for the predicate offenses were not shown
to have been imposed within ten years of the “commencement of
the instant offense,” as required by U.S.S.G. § 4A1.2(e)(2).
The predicate offenses were Bell’s conviction on January 16,
1997, for distributing crack cocaine near a public park, and his
conviction on August 6, 1998, for possession with intent to
distribute crack cocaine near a school. The record shows that
the cocaine-distribution conspiracy alleged in this case
commenced well within the ten-year window following the
predicate offenses. Bell’s coconspirators in this case
testified to dealing drugs with Bell since 2005, and Bell’s own
statements admitted to buying cocaine as far back as 1999. The
district court thus did not clearly err in finding that the
9
conspiracy in this case began before the ten-year window closed
on the predicate offenses.
Bell also argues that the district court erred in applying
an enhancement for his leadership role in the conspiracy, under
U.S.S.G. § 3B1.1(b). He insists that his companions were
involved in nothing but a conspiracy of “users.” The evidence,
however, showed that Bell actively managed multiple members of
the conspiracy in the sale of both cocaine and cocaine base.
Even though the district court did not explicitly address each
of the stated Guidelines’ factors to be considered in applying
the enhancement, we readily discern from the court’s comments
that it evaluated Bell’s role within the conspiracy in light of
those factors.
Bell next challenges the application of an obstruction-of-
justice enhancement under U.S.S.G. § 3C1.1, based on a telephone
call he made to a prospective witness. As Bell and his attorney
were preparing for jury selection, the government provided a
list of its witnesses to Bell and his attorney, which included
the name of Tonya Kneece. Several hours later, Special Agent
Morlan received a voicemail from Kneece, who was very upset and
crying. Kneece informed Special Agent Morlan that Bell had
called her on the telephone to say he was very angry at her.
Bell told Kneece that he had seen her name on the witness list
and that he “knew everything.” He told her that he thought they
10
were friends and then abruptly hung up. Kneece told Special
Agent Morlan that she was concerned for her safety. Bell argues
that these facts reveal “no threat by [him] to influence Kneece
and therefore, no intent to obstruct justice.” The enhancement,
however, does not require the showing of an actual threat.
Intimidation or unlawful influence suffices. See U.S.S.G. §
3C1.1, Application Note 4(A). There can be little doubt that
Kneece was intimidated by the call, as she told Special Agent
Morlan that she was afraid for her safety because of it. We
conclude that this evidence was sufficient to justify the
district court’s finding of intimidation.
Finally, Bell challenges the parole-violation enhancement
under U.S.S.G. § 4A1.1(d), arguing that his term of parole fixed
by any earlier sentence had expired before this conspiracy in
this case had begun. This argument, however, is not supported
by the record. On August 6, 1998, Bell was convicted of
possession with intent to distribute crack cocaine near a
school. He was released on parole on September 9, 2001, which
expired on June 8, 2005. This termination date of parole came
after Bell had resumed trafficking in cocaine and cocaine base
in 2004 and 2005. Accordingly, we conclude that the district
court did not err in applying this enhancement.
In sum, the judgment of the district court is
AFFIRMED.
11
