Documentos de Académico
Documentos de Profesional
Documentos de Cultura
No. 11-5031
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington.
Malcolm J. Howard,
Senior District Judge. (7:09-cr-00054-H-3)
Submitted:
FLOYD,
Circuit
Decided:
Judges,
and
HAMILTON,
Senior
PER CURIAM:
Raphel Smith was convicted following a jury trial of
conspiracy to distribute and possess with intent to distribute
fifty or more grams of cocaine base (Count One), in violation of
21 U.S.C. 846 (2006); distribution of more than five grams of
cocaine base and a quantity of marijuana and aiding and abetting
the same (Count Six), and distribution of a quantity of cocaine
base and aiding and abetting the same (Count Fourteen), both in
violation of 21 U.S.C. 841(a)(1) and 2 (2006); and possession
of a firearm in furtherance of a drug trafficking crime (Count
Fifteen), in violation of 18 U.S.C. 924(c)(1)(A) (2006).
The
district
235
months
court
sentenced
imprisonment
on
Smith
Counts
to
One,
concurrent
Six,
and
terms
Fourteen
of
and
On appeal,
We affirm in
F.3d 566, 571 (4th Cir.), cert. denied, 132 S. Ct. 564 (2011).
Where the motion alleges insufficiency of the evidence, we must
affirm if, viewing the evidence in the light most favorable to
2
the Government, any rational trier of fact could have found the
essential
United
elements
States
(internal
of
v.
the
Green,
quotation
crime
599
marks
beyond
F.3d
360,
reasonable
367
omitted).
(4th
In
doubt.
Cir.
2010)
making
this
is
supported
by
substantial
evidence,
where
could
accept
as
adequate
and
sufficient
to
support
assuming
that
the
jury
Governments favor.
resolved
conflicting
evidence
in
the
Thus, a
where
the
prosecutions
failure
is
clear.
United
States v. Ashley, 606 F.3d 135, 138 (4th Cir. 2010) (internal
quotation marks omitted).
Contrary to Smiths assertion, we conclude that the
record contains abundant evidence of his involvement in the drug
conspiracy
charged
in
Count
One,
particularly
through
the
facilitating
the
controlled
purchases
on
those
occasions.
See United States v. Alerre, 430 F.3d 681, 689 (4th Cir. 2005)
(discussing elements of distribution of controlled substances);
United States v. Burgos, 94 F.3d 849, 873 (4th Cir. 1996) (en
banc) (describing aiding and abetting in conspiracy context).
As to Count Fifteen, Smiths primary contention that
the
only
evidence
adduced
to
support
his
conviction
was
his
presence at the time the weapon and drugs were sold misses the
mark, as it fails to account for Smiths co-ownership of the gun
and the guns benefits to the February 21 drug sale.
Viewing
Smiths
evidence.
conviction
is
supported
by
substantial
Wilson,
484
F.3d
267,
282
(4th
Cir.
2007)
(concluding
Smith
challenges
applying
his
sentence
on
both
deferential
abuse-of-discretion
first
ensure
that
the
district
court
We
committed
no
Guidelines
U.S.C.
3553(a)
range,
(2006)
insufficient
factors
consideration
and
the
of
parties
the
18
sentencing
Only
argues
that
the
district
court
See id.
should
have
calculation
of
quantity
under
the
Guidelines.
United States v. Slade, 631 F.3d 185, 188 (4th Cir.), cert.
5
The
the
report
in
making
findings,
the
on
by
the
district
incorrect . . . .
court
in
making
its
findings
is
Ricco, 52 F.3d 58, 63 (4th Cir. 1995) (approving 100:88 powderto-crack conversion ratio).
is
amply
supported
by
the
testimony
Smiths
co-
We
the
agree.
district
Without
court
made
considering
only
single
the
pertinent
finding
with
(J.A. 661). 2
constitute
evidence
authority.
courts
See
of
Smiths
Kellam,
consider
in
568
managerial
F.3d
applying
at
148
3B1.1(b)
or
supervisory
(discussing
factors
enhancement).
Even
that,
while
the
record
may
have
demonstrated
of
Smiths
exercise
of
authority
over
another
that
the
erroneous
role
enhancement
presented,
we
resentencing.
vacate
clearly
Smiths
sentence
on
and
the
facts
remand
for
Because
unreasonable,
was
we
we
need
find
not
Smiths
reach
his
sentence
arguments
procedurally
regarding
the
the
court
and
argument
would
not
aid
the
decisional
process.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED