United States of America v. Corvain T. Cooper, a/k/a CV

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4586
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
CORVAIN T. COOPER, a/k/a CV,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., District Judge. (3:11-cr-00337-RJC-DSC-12)
Submitted: August 31, 2015 Decided: October 2, 2015
Before KING and WYNN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part and dismissed in part by unpublished per curiam
opinion.
Patrick Michael Megaro, Orlando, Florida, for Appellant. Anne M.
Tompkins, United States Attorney, Anthony J. Enright, Assistant
United States Attorney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
A jury convicted Corvain Cooper of conspiring to distribute
and possess with intent to distribute 1000 kilograms or more of
marijuana, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A),
846 (2012); money laundering, in violation of 18 U.S.C.
§ 1956(a)(1)(A)(i), (a)(1)(B)(i), (h) (2012); and structuring,
and aiding and abetting in structuring, financial transactions
to evade reporting requirements, in violation of 31 U.S.C.
§ 5324(a)(3), (d)(1), (d)(2) (2012); 31 C.F.R. §§ 103.11, 103.22
(2015); 18 U.S.C. § 2 (2012). The district court sentenced
Cooper to a mandatory term of life imprisonment. Cooper argues
that (1) evidence of his past conviction for possession of
marijuana and of his past possession of a firearm was
inadmissible character evidence, (2) his case should have been
severed from those of his codefendants, (3) the evidence was
insufficient to connect him to 1000 or more kilograms of
marijuana, (4) he suffered ineffective assistance of counsel,
and (5) his sentence violates the Eighth Amendment. We affirm
in part and dismiss in part.
We first review Cooper’s challenges to the district court’s
admission of evidence for abuse of discretion. United States v.
Queen, 132 F.3d 991, 995 (4th Cir. 1997). Cooper contends that
the district court’s evidentiary rulings contravened both Rule
404(b) and Rule 403 of the Federal Rules of Evidence.

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Rule 404(b)(1) prohibits introduction of “[e]vidence of a
crime, wrong, or other act . . . to prove a person’s character
in order to show that on a particular occasion the person acted
in accordance with the character.” Evidence “concern[ing] acts
intrinsic to the alleged crime,” however, does not fall within
Rule 404(b)’s ambit. United States v. Otuya, 720 F.3d 183, 188
(4th Cir. 2013) (internal quotation marks and brackets omitted).
“[E]vidence of other bad acts is intrinsic if, among other
things, it involves the same series of transactions as the
charged offense, which is to say that both acts are part of a
single criminal episode.” Id. (internal quotation marks and
citation omitted). Moreover, evidence subject to exclusion
under Rule 404(b)(1) “may be admissible for another purpose,
such as proving motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of accident.”
Fed. R. Evid. 404(b)(2). Generally, we will not find that a
district court abused its discretion in admitting evidence over
a Rule 404(b) objection unless that decision was “arbitrary and
irrational.” United States v. Williams, 740 F.3d 308, 314 (4th
Cir. 2014).
We find no abuse of discretion in the district court’s
decision to admit the testimony of Beverly Hills, California
police officer David Rudy that he recovered a brick of marijuana
and other evidence of drug distribution from Cooper during a

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traffic stop in January 2009. At the conclusion of Officer
Rudy’s testimony, the court instructed the jury to limit its
consideration of that testimony to the issues of intent, motive,
plan, preparation, absence of mistake, or lack of accident.
Evidence that Cooper was selling marijuana in California at the
height of the drug trafficking conspiracy alleged in this case
is probative of his intent to participate in that conspiracy,
even if his low-level distribution in California was not part of
the conspiracy. See United States v. Ghant, 339 F.3d 660, 664
(8th Cir. 2003).*
We also find no abuse of discretion in the district court’s
admission of evidence that Cooper obtained and possessed a
firearm to protect himself. Because firearms are tools of the
drug trade, evidence that Cooper possessed a firearm is relevant
intrinsic evidence of the ongoing conspiracy. See United States
v. Ricks, 882 F.2d 885, 892 (4th Cir. 1984) (“[E]vidence of
firearms is relevant in narcotics conspiracy cases.”); see also
Ybarra v. Illinois, 444 U.S. 85, 107 (1979) (recognizing that
* The government asks us to find that evidence that Cooper
was dealing drugs in California was “inextricably intertwined”
with the conspiracy and therefore not subject to the constraints
of Rule 404(b). See Otuya, 720 F.3d at 188. Because we
conclude that the district court was within its discretion to
admit Officer Rudy’s testimony only as evidence of intent,
motive, preparation, plan, absence of mistake, or lack of
accident, we do not address whether the court might have
admitted it for more general purposes.

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firearms are as much “tools of the trade” in the narcotics
business as are other forms of paraphernalia).
We also reject Cooper’s argument that the district court
should have excluded Officer Rudy’s testimony and the evidence
of Cooper’s firearm possession pursuant to Rule 403. Rule 403
permits a district court to “exclude relevant evidence if its
probative value is substantially outweighed by a danger of . . .
unfair prejudice.” Because “balancing . . . the Rule 403 scale
. . . is a discretionary task for the district court,” we will
not overturn a district court’s decision to admit evidence over
a Rule 403 objection “‘except under the most extraordinary
circumstances, where that discretion has plainly been abused,’”
and the trial court has acted “‘arbitrarily or irrationally.’”
United States v. Williams, 445 F.3d 724, 732 (4th Cir. 2006)
(quoting United States v. Simpson, 910 F.2d 154, 157 (4th Cir.
1990)). Here, Cooper has simply not shown that the trial court
acted arbitrarily or irrationally in concluding that the
unfairly prejudicial effect of Officer Rudy’s testimony and the
evidence of Cooper’s firearm possession did not “substantially
outweigh” the probative value of that evidence.
We likewise consider the district court’s denial of
Cooper’s motion for severance for abuse of discretion. United
States v. Min, 704 F.3d 314, 319 (4th Cir. 2013). A district
court has “broad discretion” to deny a motion for severance. To

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establish an abuse of that discretion, a defendant must show
that he suffered prejudice as a result of the denial. United
States v. Lighty, 616 F.3d 321, 348 (4th Cir. 2010).
The Federal Rules of Criminal Procedure permit multiple
defendants to be “charged in the same indictment if they are
alleged to have ‘participated in the same act or transaction, or
in the same series of acts or transactions, constituting an
offense or offenses.’” Id. (quoting Fed. R. Crim. P. 8(b)).
Moreover, “[t]here is a preference in the federal system for
joint trials of defendants who are indicted together because
such trials promote efficiency and serve the interests of
justice by avoiding the scandal and inequality of inconsistent
verdicts.” United States v. Graham, __ F.3d __, __, Nos.
12-4659, 12-4825, 2015 WL 4637931, at *28 (4th Cir. 2015)
(internal quotation marks and brackets omitted).
While Rule 14 permits severance, a district court should
not order it unless “there is a serious risk that a joint trial
would compromise a specific trial right of one of the
defendants, or prevent the jury from making a reliable judgment
about guilt or innocence.” Id. The burden rests with the
defendant to show “that actual prejudice would result from a
joint trial, and not merely that a separate trial would offer a
better chance of acquittal.” Id. (internal quotation marks and
ellipses omitted).

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Cooper makes no such showing. Cooper neither identifies a
specific right that the joint trial infringed upon nor
demonstrates that the joint trial prevented the jury from
reliably determining his guilt. While one of his codefendants
pleaded ignorance and sought to shift blame to him, that
testimony would have been admissible even if his trial were
severed. Cooper thus suffered no prejudice, and consequently,
we find no abuse of discretion in the denial of Cooper’s motion
to sever.
We next review de novo the district court’s denial of
Cooper’s Rule 29 motion for judgment of acquittal. United
States v. Smith, 451 F.3d 209, 216 (4th Cir. 2006). We will
affirm if, when the evidence is viewed in the light most
favorable to the government, “the conviction is supported by
substantial evidence.” United States v. Hickman, 626 F.3d 756,
762-63 (4th Cir. 2010) (internal quotation marks omitted).
“‘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.’”
United States v. Green, 599 F.3d 360, 367 (4th Cir. 2015)
(quoting United States v. Burgos, 94 F.3d 849, 862 (4th Cir.
1996) (en banc)). A defendant challenging evidentiary
sufficiency “faces a heavy burden.” United States v. Foster,
507 F.3d 233, 245 (4th Cir. 2007). Reversal of a conviction on

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these grounds is limited to “cases where the prosecution’s
failure is clear.” Id. at 244-45 (internal quotation marks
omitted).
To obtain a conviction for a drug conspiracy under 21
U.S.C. § 846, the government must show that a defendant
(1) agreed with at least one more person to engage in conduct
that violated 21 U.S.C. § 841; (2) had knowledge of the
conspiracy; and (3) knowingly and voluntarily participated in
the conspiracy. United States v. Howard, 773 F.3d 519, 525 (4th
Cir. 2014). Further, “in order for the statutory maximums and
mandatory minimums of § 841(b) to apply,” the government must
demonstrate “that the threshold drug amount was reasonably
foreseeable to the individual defendant.” United States v.
Brooks, 524 F.3d 549, 558 (4th Cir. 2008). In that vein, this
Court has cautioned that the trier of fact “may not simply guess
at the magnitude or frequency of unknown criminal activity” if
“no evidence exists to guide the trier of fact in determining
the outer scope of a conspiracy.” Hickman, 626 F.3d at 768-69.
Here, the Government presented sufficient evidence
specifically showing that Cooper was responsible for more than
1000 kilograms of marijuana. The Government presented testimony
from three of Cooper’s coconspirators, each of whom claimed to
distribute well over 10,000 kilograms of marijuana. While only
153 kilograms of marijuana were seized, the jury is not limited

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to considering only that marijuana which is seized. See United
States v. Durham, 211 F.3d 437, 444 (7th Cir. 2000) (holding
that court may take witnesses’ estimates of amount of drugs
purchased and multiply that by minimum quantity sold on each
occasion), cited in Hickman, 626 F.3d at 769.
Next, while Cooper charges his attorney with ineffective
assistance, unless an attorney’s ineffectiveness conclusively
appears on the face of the record, such claims are not generally
addressed on direct appeal. United States v. Benton, 523 F.3d
424, 435 (4th Cir. 2008). Because his attorney’s
ineffectiveness does not appear on the face of the record, his
claims should be raised in a motion brought pursuant to 28
U.S.C. § 2255 (2012), to permit sufficient development of the
record. United States v. Baptiste, 596 F.3d 214, 216 n.1 (4th
Cir. 2010). We thus dismiss his appeal with respect to the
ineffective assistance claims.
Finally, we review de novo Cooper’s challenge to his
sentence on Eighth Amendment grounds. United States v. Dowell,
771 F.3d 162, 167 (4th Cir. 2014). The Eighth Amendment
prohibits cruel and unusual punishments, encompassing both
barbaric punishments and those that are disproportionate to the
crime committed. Graham v. Florida, 560 U.S. 48, 59 (2010). In
determining whether a sentence is disproportionate to the
offense, and thus cruel and unusual, we consider objective

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criteria, including the gravity of the offense and harshness of
the penalty, the sentences imposed on other criminals in the
same jurisdiction, and the sentences imposed for the same
offense in other jurisdictions. Dowell, 771 F.3d at 167. Of
the challenges charging that a particular sentence is
disproportionate to the crime committed, there are two types: an
as-applied challenge that the length of a sentence is
disproportionate given the circumstances of the case, and a
categorical challenge asserting that the entire class of
sentences is disproportionate based on the nature of the offense
or the characteristics of the offender. Id.
Where, as here, a party has asserted an as-applied
challenge to a particular sentence, we have outlined a specific
method of analysis:
[T]he narrow proportionality principle of the Eighth
Amendment does not require strict proportionality
between crime and sentence, but forbids only extreme
sentences that are grossly disproportionate to the
crime. Before an appellate court concludes that a
sentence is grossly disproportionate based on an
as-applied challenge, the court first must determine
that a threshold comparison of the gravity of the
offense and the severity of the sentence leads to an
inference of gross disproportionality.
United States v. Cobler, 748 F.3d 570, 575 (4th Cir. 2014)
(internal quotation marks and citations omitted).
As Cooper acknowledges, we have previously held that a
mandatory sentence of life without parole for drug distribution

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is not grossly disproportionate. United States v. Kratsas, 45
F.3d 63, 68 (4th Cir. 1995). In Kratsas, we emphasized that the
defendant’s conduct was “immensely grave,” considering that the
defendant was “part of a ring of dealers,” directly responsible
“a large amount of cocaine, specifically 18 kilograms,” and a
repeat drug offender. Id. Cooper makes no effort to
distinguish Kratsas; rather, he urges us to reconsider Kratsas
in light of policy changes concerning marijuana and sentencing
since that decision. We cannot overrule a published decision
issued by another panel of this Court. McMellon v. United
States, 387 F.3d 329, 332 (4th Cir. 2004) (en banc). Therefore,
we conclude that Kratsas forecloses Cooper’s Eighth Amendment
claim.
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 IN PART AND
DISMISSED IN PART

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