United States of America v. Smith, 451 F.3d 209, 216 4th Cir. , cert. denied, 127 S. Ct. 197 2006 . Where, as…

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4550
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MATTHEW DWAYNE SMITH, a/k/a Mackie, a/k/a
Smac,
Defendant - Appellant.
No. 06-4560
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ERNEST VAN CARR, a/k/a E,
Defendant - Appellant.
No. 06-4613
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus

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ANGEL MANUEL GONZALEZ, a/k/a Genito Carr,
a/k/a To,
Defendant - Appellant.
Appeals from the United States District Court for the Northern
District of West Virginia, at Martinsburg. Irene M. Keeley, Chief
District Judge. (3:05-cr-00007-WCB)
Submitted: March 28, 2007 Decided: May 29, 2007
Before WILLIAMS, TRAXLER, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Kevin T. Tipton, CLAGETT & TIPTON, White Hall, West Virginia; Barry
P. Beck, POWER, BECK & MATZUREFF, Martinsburg, West Virginia;
Edmund J. Rollo, Morgantown, West Virginia, for Appellants. Sharon
L. Potter, United States Attorney, Thomas O. Mucklow, Assistant
United States Attorney, Martinsburg, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
A jury convicted Matthew Dwayne Smith, Ernest Van Carr,
and Angel Gonzalez of conspiracy to distribute more than fifty
grams of crack cocaine, in violation of 21 U.S.C. § 846 (2000), and
various substantive offenses, in violation of 21 U.S.C. § 841(a)(1)
(2000), and 18 U.S.C. § 2 (2000). In these consolidated appeals,
Appellants challenge their convictions and sentences. Finding no
reversible error, we affirm.
I. Carr
On appeal, Carr asserts that the evidence was
insufficient to convict him of conspiracy to possess with intent to
distribute and to distribute crack cocaine because the Government
failed to prove an interdependence between him, Gonzalez, and Smith
sufficient to show that he knowingly joined the conspiracy. We
review de novo the district court’s decision to deny a motion for
judgment of acquittal under Fed. R. Crim. P. 29. United States v.
Smith, 451 F.3d 209, 216 (4th Cir.), cert. denied, 127 S. Ct. 197
(2006). Where, as here, the motion was based on a claim of
insufficient evidence, “[t]he verdict of a jury must be sustained
if there is substantial evidence, taking the view most favorable to
the Government, to support it.” Glasser v. United States, 315 U.S.
60, 80 (1942); Smith, 451 F.3d at 216. This court “can reverse a
conviction on insufficiency grounds only when the prosecution’s

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failure is clear.” United States v. Moye, 454 F.3d 390, 394 (4th
Cir.) (internal quotation marks and citation omitted), cert.
denied, 127 S. Ct. 452 (2006).
“To prove a conspiracy under 21 U.S.C. § 846, the
government must prove (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. Strickland, 245 F.3d 368, 384-85 (4th Cir. 2001); United
States v. Burgos, 94 F.3d 849, 857 (4th Cir. 1996) (en banc).
A defendant may be convicted of conspiracy without knowing all the
conspiracy’s details, as long as he joins the conspiracy
understanding its unlawful nature and willfully joins in the plan
on at least one occasion. Burgos, 94 F.3d at 858. Once the
existence of a conspiracy is established, only a slight link
between a defendant and the conspiracy is needed to support a
conviction. United States v. Cardwell, 433 F.3d 378, 390 (4th Cir.
2005), cert. denied, 126 S. Ct. 1669 (2006). Our review of the
trial testimony convinces us that the Government demonstrated
Carr’s knowing participation in the conspiracy. Although Carr
asserts that some of the Government’s witnesses were not credible,
“[w]e do not review the credibility of the witnesses and assume the
jury resolved all contradictions in the testimony in favor of the

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government.” United States v. Sun, 278 F.3d 302, 313 (4th Cir.
2002).
Next, Carr asserts that the evidence was insufficient to
prove that he aided and abetted Smith’s distribution of crack on
July 20, 2004 (Count 9). Carr contends that the confidential
informant contacted Smith for crack and that Carr was “simply
present” at the drug deal but did not aid, abet, or assist. “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 and citation
omitted). We conclude that the evidence presented at trial
supported the jury’s guilty verdict on Count 9. See id.; see also
United States v. Alerre, 430 F.3d 681, 689 (4th Cir. 2005)
(discussing elements of offense of distribution of a controlled
substance), cert. denied, 126 S. Ct. 1925 (2006).
Carr also contends on appeal that the Government failed
to prove that he aided and abetted Smith’s possession of crack
cocaine with the intent to distribute on July 20, 2004 (Count 10).
Carr asserts that, because officers seized the crack from Smith’s
pants pocket, he (Carr) could not have constructively possessed the
crack because he did not have dominion and control over the car
where the drugs were found. Although Carr challenges his
constructive possession of the drugs, the issue is whether Carr
aided and abetted Smith’s possession of crack with intent to

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distribute. The evidence at trial disclosed that Smith had actual
possession of 5.2 grams of crack cocaine when he was arrested after
a controlled buy with a confidential informant. See United
States v. Collins, 412 F.3d 515, 519 (4th Cir. 2005) (setting forth
elements of offense of possession with the intent to distribute).
By assisting Smith in the actual distribution of crack (the offense
charged in Count 9), it was reasonable for the jury to infer that
Carr knew Smith was involved in the illegal distribution of a
controlled substance and knowingly participated in Smith’s
possession of crack cocaine with the intent to distribute. See
Burgos, 94 F.3d at 873. Accordingly, we conclude that the evidence
was sufficient to support the jury’s verdict on Count 10.
Turning to Carr’s challenges to his 151-month sentence,
he first asserts that the district court erred when it refused to
sentence him below the advisory sentencing guideline range
calculated using the 100:1 crack-to-powder cocaine ratio. Carr
correctly concedes that his argument is foreclosed by our decision
in United States v. Eura, 440 F.3d 625, 633-34 (4th Cir. 2006),
petition for cert. filed, __ U.S.L.W. __ (U.S. June 20, 2006) (No.
05-11659). Although Carr urges us to reconsider our holding in
Eura, “a panel of this court cannot overrule, explicitly or
implicitly, the precedent set by a prior panel of this court. Only
the Supreme Court or this court sitting en banc can do that.”
Scotts Co. v. United Indus. Corp., 315 F.3d 264, 271-72 n.2 (4th

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Cir. 2002) (internal quotation marks and citation omitted). Thus,
Carr is not entitled to relief on this claim.
Next, Carr asserts that the district court failed to
adequately consider the factors in 18 U.S.C.A. § 3553(a) (West 2000
& Supp. 2006), before sentencing him, that the court effectively
applied a mandatory sentencing guidelines scheme, and that his
sentence is unreasonable because he received the same sentence
Gonzalez received. After United States v. Booker, 543 U.S. 220
(2005), a district court is no longer bound by the range prescribed
by the sentencing guidelines. United States v. Hughes, 401 F.3d
540, 546 (4th Cir. 2005). However, in imposing a sentence
post-Booker, courts still must calculate the applicable guideline
range after making the appropriate findings of fact and consider
the range in conjunction with other relevant factors under the
guidelines and § 3553(a). United States v. Moreland, 437 F.3d 424,
432 (4th Cir.), cert. denied, 126 S. Ct. 2054 (2006). This court
will affirm a post-Booker sentence if it “is within the statutorily
prescribed range and is reasonable.” Id. at 433 (internal
quotation marks and citation omitted). “[A] sentence within the
proper advisory Guidelines range is presumptively reasonable.”
United States v. Johnson, 445 F.3d 339, 341 (4th Cir. 2006).
Our review of the record leads us to conclude that the
district court appropriately treated the guidelines as advisory and
sentenced Carr only after considering and examining the sentencing

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guidelines and the § 3553(a) factors, as instructed by Booker.
Carr suggests that his sentence is unreasonable because it was the
same as Gonzalez’s, whose participation in the conspiracy Carr
alleges was greater than his. See 18 U.S.C.A. § 3553(a)(6). Carr
and Gonzalez, however, do not have similar criminal histories. In
addition, Carr’s 151-month sentence is below the statutory maximum
sentence of life imprisonment. See 21 U.S.C.A. § 841(b)(1)(A)
(West 1999 & Supp. 2006). Finally, neither Carr nor the record
suggests any information so compelling as to rebut the presumption
that a sentence within the properly calculated guideline range is
reasonable. We therefore conclude that the district court
adequately considered the § 3553(a) factors before imposing Carr’s
sentence and that the sentence is reasonable.
II. Gonzalez
Gonzalez contends that the district court erred in
denying his motion for a mistrial in light of testimony that he
threatened a woman with a gun in an effort to recover stolen drug
proceeds. Gonzalez correctly notes that, before trial, the
district court excluded that testimony as unfairly prejudicial
under Fed. R. Evid. 403. This court reviews for an abuse of
discretion a district court’s denial of a motion for a mistrial.
United States v. Stockton, 349 F.3d 755, 762 (4th Cir. 2003). We
have held that “[a] defendant must show prejudice in order for the

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*Gonzalez is represented by new counsel on appeal.
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court’s ruling to constitute an abuse of discretion, and no
prejudice exists if the jury could make individual guilt
determinations by following the court’s cautionary instructions.”
United States v. West, 877 F.2d 281, 288 (4th Cir. 1989).
We find no abuse of discretion in the district court’s
denial of Gonzalez’s motion for a mistrial. Immediately after the
witness’ testimony about the excluded incident, the district court
directed the jury to disregard the witness’ statement and, in its
final instructions to the jury, also stated that “[a]ny evidence to
which an objection was sustained by the Court, and any evidence
ordered stricken by the Court, must be entirely disregarded.”
(JA-III at 1235). We presume that the jury followed the court’s
instructions to disregard the testimony about the gun. See United
States v. Williams, 461 F.3d 441, 451 (4th Cir.), cert. denied, 127
S. Ct. 616 (2006). Moreover, our review of the trial testimony
convinces us that the jury independently determined Gonzalez’s
guilt on each count against him. See West, 877 F.2d at 288.
Gonzalez also asserts that his trial counsel * provided
ineffective assistance by introducing evidence of a prior state
court conviction for possession of cocaine on the same day as the
offense charged in Count 5 of the indictment. We “may address
[claims of ineffective assistance of counsel] on direct appeal only
if the lawyer’s ineffectiveness conclusively appears from the

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record.” United States v. Baldovinos, 434 F.3d 233, 239 (4th
Cir.), cert. denied, 126 S. Ct. 1407 (2006); see Strickland v.
Washington, 466 U.S. 668, 687-88, 694 (1984) (discussing standard
for claims of ineffective assistance of counsel). Applying these
standards, we decline to review this claim on direct appeal.
Gonzalez next challenges his sentence, asserting that the
district court erred by enhancing his base offense level two levels
for possession of a weapon under U.S. Sentencing Guidelines Manual
§ 2D1.1(b)(1) (2005). We review the district court’s application
of the enhancement under § 2D1.1(b)(1) for clear error. See United
States v. McAllister, 272 F.3d 228, 234 (4th Cir. 2001). This
“adjustment should be applied if the weapon was present, unless it
is clearly improbable that the weapon was connected with the
offense.” USSG § 2D1.1(b)(1), cmt. n.3; see McAllister, 272 F.3d
at 233-34. Our review of the record convinces us that the district
court did not clearly err in applying the enhancement.
III. Smith
Smith asserts on appeal that the district court erred in
relying on the testimony of William Tolbert to determine the amount
of drugs attributable to him. In evaluating Tolbert’s trial
testimony at sentencing, the district court did not wholly reject
it. Rather, the court used only conservative estimates of the
portions of Tolbert’s testimony the court deemed to be credible.

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See Sun, 278 F.3d at 313. Given this approach, we conclude that
the district court’s credibility determination and its ultimate
determination of drug quantity should not be disturbed on appeal.
IV. Conclusion
Accordingly, we affirm Smith’s sentence, affirm Carr’s
convictions and sentence, and affirm Gonzalez’s convictions and
sentence. We also decline to review Gonzalez’s ineffective
assistance of counsel claim on direct appeal. We dispense with
oral argument because the facts and legal contentions are
adequately presented in the material before the court and argument
would not aid the decisional process.
AFFIRMED

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