United States of America v. Aston Earl McCrea

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4755
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ASTON EARL MCCREA,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. Samuel G. Wilson, District
Judge. (7:11-cr-00089-SGW-1)
Submitted: May 31, 2013 Decided: June 20, 2013
Before SHEDD, AGEE, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Krysia Carmel Nelson, LAW OFFICES OF KRYSIA CARMEL NELSON, PLC,
Keswick, Virginia, for Appellant. Daniel P. Bubar, OFFICE OF
THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Aston Earl McCrea was convicted after a jury trial of
one count of conspiracy to distribute marijuana, in violation of
21 U.S.C. § 846 (2006); one count of possession with intent to
distribute marijuana, in violation of 21 U.S.C. § 841(a)(1)
(2006); one count of conspiracy to commit money laundering, in
violation of 18 U.S.C. § 1956(h) (2006); one count of felon in
possession of a firearm, in violation of 18 U.S.C. § 922(g)(1)
(2006); and one count of possession of a firearm in furtherance
of a drug trafficking crime, in violation of 18 U.S.C.
§ 924(c)(1) (2006). The district court sentenced McCrea to a
total of 180 months’ imprisonment. McCrea’s counsel filed a
brief in accordance with Anders v. California, 386 U.S. 738
(1967), stating that, in counsel’s view, there are no
meritorious issues for appeal, but questioning whether the court
erred by denying McCrea’s motion for judgment of acquittal,
whether the sentence imposed was reasonable, and whether McCrea
received ineffective assistance from trial counsel. McCrea
filed a supplemental pro se brief raising a number of issues.
We affirm.
I.
This court reviews de novo a district court’s denial
of a Fed. R. Crim. P. 29 motion for judgment of acquittal.
United States v. Alerre, 430 F.3d 681, 693 (4th Cir. 2005). A

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jury’s verdict “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);
see United States v. Penniegraft, 641 F.3d 566, 571-72 (4th
Cir.), cert denied, 132 S. Ct. 564 (2011). Substantial evidence
is “evidence that a reasonable finder of fact could accept as
adequate and sufficient to support a conclusion of a defendant’s
guilt beyond a reasonable doubt.” Alerre, 430 F.3d at 693
(internal quotation marks omitted). In evaluating the
sufficiency of the evidence, we consider both circumstantial and
direct evidence, United States v. Harvey, 532 F.3d 326, 333 (4th
Cir. 2008), and do not reweigh the evidence or reassess the
factfinder’s credibility determinations, United States v. Roe,
606 F.3d 180, 186 (4th Cir. 2010). We will “reverse a
conviction on insufficiency grounds only when the prosecution’s
failure is clear.” United States v. Moye, 454 F.3d 390, 394
(4th Cir. 2006) (en banc) (internal quotation marks omitted).
To prove conspiracy to distribute a controlled
substance in violation of § 846, the government must establish
that (1) two or more persons agreed to distribute the controlled
substance; and the defendant, (2) knowing of the conspiracy,
(3) knowingly and voluntarily became a part of it. United
States v. Kellam, 568 F.3d 125, 139 (4th Cir. 2009).

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To sustain a conviction for possession with intent to
distribute marijuana, in violation of § 841(a)(1), the
government must prove that: (1) the defendant possessed the
marijuana; (2) that he did so knowingly; and (3) that he
intended to distribute it. Penniegraft, 641 F.3d at 572.
In order to obtain a conviction for a money laundering
conspiracy under § 1956(h), the government must prove: (1) the
existence of an agreement between two or more persons to commit
one or more of the substantive money laundering offenses
proscribed under 18 U.S.C. § 1956(a) or § 1957; and that the
defendant, (2) knowing that the money laundering proceeds had
been derived from an illegal activity, (3) knowingly and
voluntarily became part of the conspiracy. United States v.
Singh, 518 F.3d 236, 248 (4th Cir. 2008).
To secure a conviction under 18 U.S.C. § 922(g)(1),
the government must establish that (1) the defendant was a
convicted felon; (2) he knowingly possessed the firearm; and
(3) the firearm traveled in interstate commerce. United
States v. Gallimore, 247 F.3d 134, 136 (4th Cir. 2001); United
States v. Langley, 62 F.3d 602, 606 (4th Cir. 1995) (en banc).
Here, the parties stipulated McCrea’s status as a felon and the
interstate commerce element.
Finally, in order to prove the § 924(c)(1) violation
charged here, the government must show that (1) the defendant

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possessed a firearm (2) in furtherance of a drug trafficking
offense. United States v. King, 628 F.3d 693, 699 (4th Cir.
2011).
We have thoroughly reviewed the record and conclude
that the Government provided substantial evidence of McCrea’s
guilt of each of these offenses, and therefore the district
court did not err in denying McCrea’s motion for a judgment of
acquittal.
II.
Counsel next questions whether the district court
erred in sentencing McCrea. We review a sentence for
reasonableness, applying a deferential abuse-of-discretion
standard. Gall v. United States, 552 U.S. 38, 51 (2007). We
must first ensure that the district court committed no
significant procedural error, such as improperly calculating the
Guidelines sentencing range, insufficiently considering the 18
U.S.C. § 3553(a) (2006) sentencing factors, or inadequately
explaining the sentence imposed. Id. If the sentence is free
of significant procedural error, we then review its substantive
reasonableness, examining “the totality of the circumstances,
including the extent of any variance from the Guidelines range.”
Id. If the sentence is below the properly calculated Guidelines
range, we apply a presumption on appeal that the sentence is
substantively reasonable. United States v. Susi, 674 F.3d 278,

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289 (4th Cir. 2012). Such a presumption is rebutted only if the
defendant shows “that the sentence is unreasonable when measured
against the § 3553(a) factors.” United States v. Montes-
Pineda, 445 F.3d 375, 379 (4th Cir. 2006) (internal quotation
marks omitted). After a thorough review of the record, we
conclude that the below-Guidelines sentence imposed by the
district court was both procedurally and substantively
reasonable.
III.
Counsel and McCrea question whether trial counsel
rendered constitutionally ineffective assistance. As counsel
recognizes, however, in the absence of conclusive evidence of
ineffective assistance of counsel on the face of the record,
such claims are not cognizable on direct appeal. United
States v. Powell, 680 F.3d 350, 359 (4th Cir.), cert. denied,
133 S. Ct. 376 (2012). Because the record does not conclusively
establish or even suggest that trial counsel rendered
ineffective assistance, we decline to address this claim on
direct appeal. Finally, we have examined the remainder of
McCrea’s pro se claims, and conclude that they entitle him to no
relief.
IV.
In accordance with Anders, we have reviewed the entire
record and have found no meritorious issues for appeal. We

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therefore affirm the district court’s judgment. We deny
McCrea’s pro se motion for appointment of new counsel. This
court requires that counsel inform McCrea, in writing, of the
right to petition the Supreme Court of the United States for
further review. If McCrea requests that a petition be filed,
but counsel believes that such a petition would be frivolous,
then counsel may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on the client. We dispense with oral argument
because the facts and legal contentions are adequately presented
in the materials before this court and argument would not aid
the decisional process.
AFFIRMED

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