United States of America v. Anthony Hopson

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 10-1234
_____________
UNITED STATES OF AMERICA
v.
ANTHONY HOPSON,
Appellant
Appeal from the United States District Court
for the Western District of Pennsylvania
(Crim. No. 2-08-cr-00216-001)
District Judge: Hon. Alan N. Bloch
Submitted Pursuant to Third Circuit LAR 34.1(a)
January 24, 2011
Before: McKEE, Chief Judge, SMITH, Circuit Judge and
STEARNS,∗ District Judge
(Opinion Filed: February 11, 2011)
McKEE, Chief Judge.
Anthony Hopson appeals the district court’s order of judgment of conviction and
sentence. For the reasons that follow, we will affirm.
I. BACKGROUND1
∗ Honorable Richard G. Stearns, District Court Judge, United States District Court for the
District of Massachusetts, sitting by designation.

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Hopson raises four arguments on appeal. He claims that: (1) the district court
violated his Fifth Amendment right not to testify when it instructed the jury that it could
consider “any statements omitted by the defendant”; (2) the evidence was insufficient to
convict; (3) the unavailability of the government’s confidential informant violated his
Sixth Amendment right to confront witnesses; and (4) the district court was unreasonable
in finding that he did not qualify as a career offender yet then varying upward based upon
career offender factors. We have jurisdiction pursuant to 28 U.S.C. § 1291.We review t
district court’s decision regarding jury instructions for abuse of discretion. We “order a
new trial on account of a district court’s refusal to give a proposed jury instruction ‘only
when the requested instruction was correct, not substantially covered by the instructions
given, and was so consequential that the refusal to give the instruction was prejudicial to
the defendant.’ ” United States v. Hoffecker, 530 F.3d 137, 167 (3d Cir. 2008).
he
hether
d
Challenges to the sufficiency of the evidence place “a very heavy burden” on an
appellant. United States v. Gonzalez, 918 F.2d 1129, 1132 (3d Cir. 1990) (citations and
internal quotation marks omitted). In reviewing such challenges, we view all of the
evidence on the record “in the light most favorable to the prosecution to determine w
any rational trier of fact could have found proof of guilt[] beyond a reasonable doubt base
on the available evidence.” United States v. Brodie, 403 F.3d 123, 133 (3d Cir. 2005)
(citations and internal quotation marks omitted).
Finally, absent legal error, we review a sentence for reasonableness to ensure that it
1 We write primarily for the parties and therefore will only set forth those facts that are
helpful to our brief discussion of the issues.

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was both procedurally sound and substantively reasonable. United States v. Wise, 515
F.3d 207, 217-18 (3d Cir. 2008).
II. ANALYSIS
A. Hopson’s Fifth Amendment Right Not to Testify
Hopson contends that the district court instructed the jury that it could consider his
decision not to testify as evidence of guilt, and that these instructions constituted re
error. The district court defined the phrase “intent to distribute,” and explained that a jury
“may infer a defendant’s intent from all of the surrounding circumstances,” including “a
statements made or omitted by the Defendant.” Hopsons’s counsel objected to this
portion of the district court’s instruction and argued that it violated the Fifth Amendmen
right against self-incrimination. The district court overruled the objection.
Hopso
versible
ny
t
n’s argument is undermined by the fact that the district court explicitly
struc
the
t a
reviously approved jury instructions similar to the one used
ere. S
d.
in ted the jury that “the defendant had an absolute right not to testify or offer
evidence.” The court also explained that the government had the burden to prove
defendant guilty, and that the law never imposed on a defendant in a criminal case the
burden of calling any witnesses or producing any evidence. The court emphasized tha
defendant’s decision not to testify or offer any evidence should not be considered or
discussed in deliberations.
In addition, we have p
h ee United States v. Garrett, 574 F.2d 778, 783 (3d Cir. 1978). Accordingly, we
conclude that the district court did not abuse its discretion in instructing the jury as it di
B. Sufficiency of the Evidence

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Next, Hopson argues that the evidence was not sufficient to support his conviction
r Co
e must determine if, after viewing the evidence in the light most
vora
, 319
the
.
itnes , the
’s
,
,
e
fo unts I and II (distribution of heroin). He rests that argument on the fact that there
were no witnesses to the buys, no tape recordings, video recordings or photographs of the
buys, and that the heroin found had no fingerprints or other evidence connecting Hopson to
the illegal drugs.
Accordingly, w
fa ble to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307
(1979). However, “[t]he prosecution may bear this burden entirely through circumstantial
evidence.” United States v. Bobb, 471 F.3d 491, 494 (3d Cir. 2006). Here,
circumstantial evidence is more than sufficient to support the verdict.
Hopson lived in a house that was equipped to package and distribute heroin
W ses testified in detail about the interactions between Hopson and Loren Brimage
confidential informant. Police observed Brimage entering Hopson’s home without any
heroin on him and leaving with bricks of heroin. Police also saw Brimage enter Hopson
house with “buy money” and leave shortly thereafter without the money. In addition
police discovered several items of drug paraphernalia in Hopson’s home, including
stamped bags, face masks, latex gloves, and a digital scale that contained tan residue
consistent with the appearance of the heroin found in the stamped bags. Finally, when th
police arrested Hopson, he asked “who set me up?” This evidence is clearly sufficient to
establish that Hopson was distributing heroin out of his home.
C. Unavailability of Confidential Informant

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Hopson complains that Brimage, the government informant, was the only witness to
e alle
y
pson
lly
gainst a defendant who has no opportunity to cross examine the
eclar uate
ll
at trial. Moreover,
opso d
s with
sentencing
im to nts out that the district court
jecte
th ged buys and yet he did not testify at trial because the government claimed it was
unable to locate him. In the absence of Brimage, the government presented the testimon
of law enforcement officials to whom Brimage told about the buys from Hopson. Ho
asserts that the effect of this testimony was to allow Brimage to testify without actua
being present at trial, thus violating the Confrontation Clause of the Sixth Amendment.
The Confrontation Clause is violated when hearsay evidence is admitted as
substantive evidence a
d ant or when the hearsay statement of an unavailable witness does not bear adeq
indicia of reliability. Kentucky v. Stincer, 482 U.S. 730, 737 (1987). However, “[n]ot a
hearsay implicates the Sixth Amendment’s core concerns.” Crawford v. Washington, 541
U.S. 36, 51 (2004). Rather, the admission of the declarant’s testimony does not violate the
Constitution unless it is “testimonial hearsay.” Id. at 53.
Here, Brimage did not appear at trial and his audio recordings were not played.
Thus, no out of court statement by Brimage was ever presented
H n had every opportunity to cross examine the law enforcement officers who testifie
at trial about what they saw outside of Hopson’s home, as well as in their encounter
Brimage. We find no Confrontation Clause violation here.
D. Whether Hopson’s Sentence Was Reasonable
Finally, Hopson contends that the district court abused its discretion in
h a term of imprisonment of 105 months. Hopson poi
re d the government’s characterization that he was a career offender, yet then varied

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upward based upon career offender factors. Hopson claims that because he was not a
career offender, the district court should have sentenced him to a range of 33 to 41 months
Our appellate review proceeds in two stages. It begins by “ensur[ing] that the
district court committed no significant procedural error, such as failing to calculate (o
improper
.
r
ly calculating) the Guidelines range, treating the Guidelines as mandatory, failing
con s, or
).
two,
n
t the §
erence to the District Court because it is in the best position to determine the
pprop nited States v.
to sider the § 3553(a) factors, selecting a sentence based on clearly erroneous fact
failing to adequately explain the chosen sentence – including an explanation for any
deviation from the Guidelines range.” Gall v. United States, 128 S.Ct. 586, 597 (2007
We do not presume that a district court considered the factors solely because the sentence
falls within the Guidelines range. United States v. Cooper, 437 F.3d 324, 329-30 (3d Cir.
2006). If a district court has not committed any procedural error, “we then, at stage
consider its substantive reasonableness.” United States v. Levinson, 543 F.3d 190, 195
(3d Cir. 2008). Our substantive review requires us not to focus on one or two factors, but o
the totality of the circumstances. Gall, 128 S.Ct. at 597; United States v. Howe, 543 F.3d
128, 137 (3d Cir. 2008). At both stages of our review, the party challenging the sentence
has the burden of demonstrating unreasonableness. Cooper, 437 F.3d at 332.
Where, as here, a district court decides to vary from the Guidelines’
recommendations, we “must give due deference to the district court’s decision tha
3553(a) factors, on a whole, justify the extent of the variance.” Gall, 128 S.Ct. at 597.
“We afford def
a riate sentence in light of the particular circumstances of the case.” U
Dragon, 471 F.3d 501, 506 (3d Cir. 2006).

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Here, the district court found that Hopson’s criminal history demonstrated that he
was someone who “consistently violates” society’s laws. The court pointed out that
Hopson had four prior serious drug offenses (noting that one of them was too old to count
against him under the guidelines). The court observed that the three drug trafficking crimes
r wh
ases
t
3 to
r
fo ich he was sentenced had been counted as a single sentence rather than separately
because the offenses were not separated by intervening arrests, even though the three c
involved completely separate crimes. The court pointed out that had Hopson been
arrested rather than showing up on his own pursuant to a summons, he would have
qualified as a career offender. The court also noted that Hopson committed a stalking
offense just months after he was released from serving most of a serious 3 to 6 year
sentence of imprisonment for his three other prior drug trafficking crimes. The cour
reasoned that if a six year sentence did so little to deter Hopson’s criminal activities, a 3
41 month sentence would have little to no impact. Accordingly, the district court imposed
a lengthy sentence because of its concern that Hopson had demonstrated his proclivity fo
recidivism. We can find nothing unreasonable about the sentence that was imposed and
the court did not commit any legal error in imposing it.
III. CONCLUSION.
For the reasons set forth above, we will affirm the judgment of conviction and
sentence.

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