United States of America v. United States, 437 U.S. 1, 17 1978 . Trooper Brannock saw Cave drop the box later…

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4043
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
SHANNON CAVE,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. James C. Turk, Senior District
Judge. (7:03-cr-00157-jct)
Submitted: September 27, 2006 Decided: October 27, 2006
Before NIEMEYER and WILLIAMS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Onzlee Ware, WARE & HILL, L.L.P., Roanoke, Virginia, for Appellant.
John L. Brownlee, United States Attorney, R. Andrew Bassford,
Assistant United States Attorney, Roanoke, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).

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PER CURIAM:
Shannon Cave appeals his conviction by a jury for
possession with intent to distribute more than fifty grams of
cocaine base in violation of 21 U.S.C. § 841(a)(1) (2000). The
district court sentenced Cave to life imprisonment. On appeal,
Cave’s attorney filed a formal brief, raising two grounds of error.
Cave then filed a pro se motion to strike the formal brief and a
motion for leave to file a pro se supplemental brief. We have
considered the claims in the formal brief and the pro se
supplemental brief. Finding no merit to the claims, we affirm.
First, Cave challenges the sufficiency of the evidence
against him. A defendant challenging the sufficiency of the
evidence faces a heavy burden. See United States v. Beidler, 110
F.3d 1064, 1067 (4th Cir. 1997). In reviewing a sufficiency
challenge, “[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). This court “ha[s] defined ‘substantial evidence,’ in
the context of a criminal action, as that evidence which ‘a
reasonable finder of fact could accept as adequate and sufficient
to support a conclusion of a defendant’s guilt beyond a reasonable
doubt.’” United States v. Newsome, 322 F.3d 328, 333 (4th Cir.
2003) (quoting United States v. Burgos, 94 F.3d 849, 862 (4th Cir.
1996)).

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Cave claims the evidence was insufficient because the
evidence does not show he had knowledge that a box he dropped from
a window contained cocaine, or that he intended to distribute the
cocaine. However, taken in the light most favorable to the
Government, there was ample evidence to convict Cave. This court
will uphold the jury’s verdict if there is substantial evidence to
support it, and will reverse only in those rare cases “where the
prosecution’s failure is clear.” Beidler, 110 F.3d at 1067
(quoting Burks v. United States, 437 U.S. 1, 17 (1978)). Trooper
Brannock saw Cave drop the box later determined to contain cocaine
base out of a bathroom window. Sherwood Barksdale, a prisoner
subsequently incarcerated with Cave, testified that Cave admitted
that he transported the cocaine base to the residence and had
dropped it out the bathroom window. Finally, a Government expert
testified that the amount and packaging of the cocaine base in the
box was consistent with distribution and inconsistent with personal
use. We find that viewing all the evidence together, there was
more than sufficient evidence for a reasonable finder of fact to
conclude that Cave was guilty.
Cave also argues the district court erred when it denied
his motion for a new trial based on the perjured testimony of
fellow prisoner Jesse Hairston. Pursuant to Rule 33 of the Federal
Rules of Criminal Procedure, a district court may grant a
defendant’s motion for a new trial “if the interest of justice so

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requires.” Fed. R. Crim. P. 33(a). A district court “‘should
exercise its discretion to grant a new trial sparingly,’ and . . .
should do so ‘only when the evidence weighs heavily against the
verdict.’” United States v. Perry, 335 F.3d 316, 320 (4th Cir.
2003) (quoting United States v. Wilson, 118 F.3d 228, 237 (4th Cir.
1997) (internal quotation marks omitted). This court reviews the
denial of a Rule 33 motion for abuse of discretion. United States
v. Adam, 70 F.3d 776, 779 (4th Cir. 1995).
Cave contends that he has met the standard for a new
trial under the Larrison rule. See Larrison v. United States, 24
F.2d 82, 87-88 (7th Cir. 1928), overruled by United States v.
Mitrione, 357 F.3d 712 (7th Cir. 2004) (adopting reasonable
probability test). According to that standard--which has been the
test employed in this Circuit--the district court may grant a new
trial following the recantation of a government witness’ testimony
if the court is “reasonably well satisfied” that: (1) “the
testimony given by a material witness is false,” (2) “without it
the jury might have reached a different conclusion,” and (3) “the
party seeking the new trial was taken by surprise when the false
testimony was given and was unable to meet it or did not know of
its falsity until after the trial.” United States v. Wallace, 528
F.2d 863, 866 (4th Cir. 1976) (quoting Larrison, 24 F.2d at 87-88).
See also United States v. Lofton, 233 F.3d 313, 318 (4th Cir.
2000).

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We find that the district court did not abuse its
discretion in denying Cave’s motion for a new trial because Cave
cannot satisfy the second prong under Larrison. Hairston’s
testimony was simply cumulative of the testimony given by inmate
Barksdale. Even without Hairston’s testimony, the uncontroverted
evidence is that Trooper Brannock saw Cave drop the box of cocaine
base from the bathroom window, and Cave admitted his conduct to
Barksdale.
In his pro se supplemental brief, Cave alleges that the
trial court erred by failing to inquire into his prior convictions
as required by 21 U.S.C. § 851 (2000). Cave contends that the
district court incorrectly added one point to his criminal history
score by adding one point for his state conviction for conspiracy
to possess with intent to distribute marijuana in the fourth
degree. Cave contends that this prior conviction does not qualify
as a “felony drug offense.” Cave argues that he would have
corrected the court’s alleged error had the court asked him about
the prior conviction at the sentencing hearing. Finally, Cave
argues that his counsel was ineffective for failing to raise the
issue at trial.
Because Cave raises the § 851 issue for the first time on
appeal, it is reviewed for plain error. The procedure set forth in
§ 851(b) “provides the defendant with a full and fair opportunity
to establish that he is not the previously convicted individual or

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that the conviction is an inappropriate basis for enhancement.”
United States v. Ellis, 326 F.3d 593, 599 (4th Cir. 2003) (quoting
United States v. Campbell, 980 F.2d 245, 252 (4th Cir. 1992)).
Even if the district court does not act in strict compliance with
§ 851, on plain error review, Cave “must prove that the error
‘actually affected the outcome of the proceedings.’” Ellis, 326
F.3d at 599 (quoting United States v. Hastings, 134 F.3d 235, 240
(4th Cir. 1998)).
We find Cave fails to demonstrate any error committed by
the district court that affected the outcome of the sentencing
proceeding. Prior to the sentencing, Cave received notice of the
precise conviction that would form the basis for his enhancement.
The court asked defense counsel whether he and Cave had read the
presentence report and whether there were any objections to it.
Counsel answered that they had discussed it and there were no
objections. In addition, we have reviewed the district court’s
criminal history calculation and find the court did not err. As a
result, Cave cannot demonstrate prejudice with respect to the § 851
claim or an ineffective assistance of counsel claim. See
Strickland v. Washington, 466 U.S. 668, 687-88 (1984).
For these reasons, we deny Cave’s motion to strike the
formal brief filed by his attorney, grant Cave’s motion to file a
pro se supplemental brief, and affirm Cave’s conviction and
sentence. We dispense with oral argument because the facts and

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legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
AFFIRMED

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