United States of America v. Sammy Davis Mims

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4313
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
SAMMY DAVIS MIMS,
Defendant – Appellant.
No. 10-4383
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
FREDDIE LEE CURRY,
Defendant – Appellant.
Appeals from the United States District Court for the District
of South Carolina, at Aiken. Margaret B. Seymour, District
Judge. (1:08-cr-00729-MBS-5; 1:08-cr-00729-MBS-4)
Submitted: June 28, 2011 Decided: July 1, 2011
Before WILKINSON and DAVIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

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Affirmed by unpublished per curiam opinion.
James T. McBratney, III, McBRATNEY LAW FIRM, PA, Florence, South
Carolina; Michael W. Chesser, Aiken, South Carolina, for
Appellants. William N. Nettles, United States Attorney, J.D.
Rowell, Assistant United States Attorney, Columbia, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Sammy Davis Mims and Freddie Lee Curry appeal their
convictions following a jury trial. Both Mims and Curry were
convicted of conspiracy to possess with intent to distribute and
to distribute cocaine base, in violation of 21 U.S.C. § 846
(2006). Mims was also convicted of being a felon in possession
of three firearms, in violation of 18 U.S.C. §§ 922(g)(1),
924(a)(2) and 924(e). Curry was also convicted of possession
with intent to distribute cocaine and cocaine base, in violation
of 21 U.S.C.A. § 841(a)(1), (b)(1)(B), and (b)(1)(C) (West 1999
& Supp. 2010); and possession with intent to distribute a
quantity of cocaine base and a quantity of marijuana, in
violation of 21 U.S.C.A. § 841(a)(1), (b)(1)(C), and (b)(1)(D).
The court sentenced Mims to 240 months’ imprisonment and Curry
to 360 months’ imprisonment. We affirm.
Mims argues that the district court erred in failing
to retroactively apply the Fair Sentencing Act of 2010 to Mims’
sentence. However, the Act does not apply retroactively.
United States v. Bullard, ___ F.3d ___, 2011 WL 1718894, at *11
(4th Cir. May 6, 2011). Because Mims was convicted and
sentenced before the effective date of the Fair Sentencing Act,
it does not apply to his case.
Curry argues that (1) the district court deprived him
of due process by prohibiting defense counsel, during closing

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argument, from challenging portions of Special Agent Morlan’s
testimony; (2) the Government improperly vouched for Morlan’s
credibility; (3) the district court erred in attributing to
Curry a four-level leadership sentencing enhancement, pursuant
to U.S. Sentencing Guidelines Manual (“USSG”) § 3B1.1(a) (2008),
and (4) the district court erred in attributing to Curry a two-
level possession of a dangerous weapon sentencing enhancement,
pursuant to USSG § 2D1.1(b)(1). We reject each claim.
With respect to Curry’s first argument, the district
court is afforded broad discretion in controlling closing
arguments and is to be reversed only when there is a clear abuse
of its discretion. United States v. Baptiste, 596 F.3d 214, 226
(4th Cir. 2010). We find that Curry has failed to show that the
district court abused its discretion in limiting Curry’s closing
arguments to facts supported by the record.
We review Curry’s second argument de novo because he
raises a question of law. United States v. Collins, 415 F.3d
304, 307 (4th Cir. 2005). We hold that even assuming the
Government improperly vouched for the credibility of Special
Agent Morlan, any error was harmless in light of the quantity of
evidence supporting Curry’s conviction.
Finally, we review for clear error Curry’s third and
fourth arguments, that the court erred in enhancing his sentence
pursuant to USSG §§ 3B1.1(a) and 2D1.1(b)(1). See United States

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v. Slade, 631 F.3d 185, 188 (4th Cir. 2011); United States v.
Kellam, 568 F.3d 125, 147-48 (4th Cir. 2009). We conclude that
the district court did not clearly err because both enhancements
are supported by evidence in the record.
We therefore affirm the convictions and sentences of
Mims and Curry. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED

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