UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 06-4550

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
versus
MATTHEW
Smac,

DWAYNE

SMITH,

a/k/a

Mackie,

a/k/a
Defendant - Appellant.

No. 06-4560

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
versus
ERNEST VAN CARR, a/k/a E,
Defendant - Appellant.

No. 06-4613

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
versus

ANGEL MANUEL
a/k/a To,

GONZALEZ,

a/k/a

Genito

Carr,
Defendant - Appellant.

Appeals from the United States District Court for the Northern
District of West Virginia, at Martinsburg. Irene M. Keeley, Chief
District Judge. (3:05-cr-00007-WCB)

Submitted:

March 28, 2007

Decided:

May 29, 2007

Before WILLIAMS, TRAXLER, and KING, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Kevin T. Tipton, CLAGETT & TIPTON, White Hall, West Virginia; Barry
P. Beck, POWER, BECK & MATZUREFF, Martinsburg, West Virginia;
Edmund J. Rollo, Morgantown, West Virginia, for Appellants. Sharon
L. Potter, United States Attorney, Thomas O. Mucklow, Assistant
United States Attorney, Martinsburg, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
A jury convicted Matthew Dwayne Smith, Ernest Van Carr,
and Angel Gonzalez of conspiracy to distribute more than fifty
grams of crack cocaine, in violation of 21 U.S.C. 846 (2000), and
various substantive offenses, in violation of 21 U.S.C. 841(a)(1)
(2000), and 18 U.S.C. 2 (2000).

In these consolidated appeals,

Appellants challenge their convictions and sentences.

Finding no

reversible error, we affirm.

I.
On

appeal,

Carr

Carr

asserts

that

the

evidence

was

insufficient to convict him of conspiracy to possess with intent to

distribute and to distribute crack cocaine because the Government
failed to prove an interdependence between him, Gonzalez, and Smith
sufficient to show that he knowingly joined the conspiracy.

We

review de novo the district courts decision to deny a motion for

judgment of acquittal under Fed. R. Crim. P. 29.

United States v.

Smith, 451 F.3d 209, 216 (4th Cir.), cert. denied, 127 S. Ct. 197
(2006).

Where, as here, the motion was based on a claim of

insufficient evidence, [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); Smith, 451 F.3d at 216.

This court can reverse a

conviction on insufficiency grounds only when the prosecutions

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failure is clear.
Cir.)

(internal

United States v. Moye, 454 F.3d 390, 394 (4th

quotation

marks

and

citation

omitted),

cert.

denied, 127 S. Ct. 452 (2006).

To

prove

conspiracy

under

21

U.S.C.

846,

the

government must prove (1) an agreement between two or more persons

to engage in conduct that violates a federal drug law, (2) the
defendants knowledge of the conspiracy, and (3) the defendants
knowing and voluntary participation in the conspiracy.

United

States v. Strickland, 245 F.3d 368, 384-85 (4th Cir. 2001); United
States v. Burgos, 94 F.3d 849, 857 (4th Cir. 1996) (en banc).
A defendant may be convicted of conspiracy without knowing all the
conspiracys

details,

as

long

as

he

joins

the

conspiracy

understanding its unlawful nature and willfully joins in the plan

on at least one occasion.

Burgos, 94 F.3d at 858.

Once the

existence of a conspiracy is established, only a slight link

between a defendant and the conspiracy is needed to support a
conviction. United States v. Cardwell, 433 F.3d 378, 390 (4th Cir.
2005), cert. denied, 126 S. Ct. 1669 (2006).

Our review of the

trial testimony convinces us that the Government demonstrated

Carrs knowing participation in the conspiracy.

Although Carr

asserts that some of the Governments witnesses were not credible,

[w]e do not review the credibility of the witnesses and assume the
jury resolved all contradictions in the testimony in favor of the

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government.

United States v. Sun, 278 F.3d 302, 313 (4th Cir.

2002).
Next, Carr asserts that the evidence was insufficient to
prove that he aided and abetted Smiths distribution of crack on
July 20, 2004 (Count 9).

Carr contends that the confidential

informant contacted Smith for crack and that Carr was simply
present at the drug deal but did not aid, abet, or assist.

defendant is guilty of aiding and abetting if he has knowingly

associated himself with and participated in the criminal venture.
Burgos, 94 F.3d at 873 (internal quotation marks and citation
omitted).

We

conclude

that

the

evidence

presented

at

trial

supported the jurys guilty verdict on Count 9.

See id.; see also

United

(4th

States

v.

Alerre,

430

F.3d

681,

689

Cir.

2005)

(discussing elements of offense of distribution of a controlled

substance), cert. denied, 126 S. Ct. 1925 (2006).
Carr also contends on appeal that the Government failed
to prove that he aided and abetted Smiths possession of crack
cocaine with the intent to distribute on July 20, 2004 (Count 10).
Carr asserts that, because officers seized the crack from Smiths
pants pocket, he (Carr) could not have constructively possessed the
crack because he did not have dominion and control over the car
where

the

drugs

were

found.

Although

Carr

challenges

his

constructive possession of the drugs, the issue is whether Carr

aided and abetted Smiths possession of crack with intent to

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distribute.

The evidence at trial disclosed that Smith had actual

possession of 5.2 grams of crack cocaine when he was arrested after

a

controlled

buy

with

confidential

informant.

See

United

States v. Collins, 412 F.3d 515, 519 (4th Cir. 2005) (setting forth
elements of offense of possession with the intent to distribute).
By assisting Smith in the actual distribution of crack (the offense
charged in Count 9), it was reasonable for the jury to infer that
Carr knew Smith was involved in the illegal distribution of a
controlled

substance

and

knowingly

participated

in

Smiths

possession of crack cocaine with the intent to distribute.

See

Burgos, 94 F.3d at 873. Accordingly, we conclude that the evidence

was sufficient to support the jurys verdict on Count 10.
Turning to Carrs challenges to his 151-month sentence,
he first asserts that the district court erred when it refused to
sentence

him

below

the

advisory

sentencing

guideline

range

calculated using the 100:1 crack-to-powder cocaine ratio.

Carr

correctly concedes that his argument is foreclosed by our decision

in United States v. Eura, 440 F.3d 625, 633-34 (4th Cir. 2006),
petition for cert. filed, __ U.S.L.W. __ (U.S. June 20, 2006) (No.
05-11659).
Eura,

Although Carr urges us to reconsider our holding in

panel

of

this

court

cannot

overrule,

explicitly

implicitly, the precedent set by a prior panel of this court.

or

Only

the Supreme Court or this court sitting en banc can do that.

Scotts Co. v. United Indus. Corp., 315 F.3d 264, 271-72 n.2 (4th

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Cir. 2002) (internal quotation marks and citation omitted).

Thus,

Carr is not entitled to relief on this claim.

Next, Carr asserts that the district court failed to
adequately consider the factors in 18 U.S.C.A. 3553(a) (West 2000
& Supp. 2006), before sentencing him, that the court effectively
applied a mandatory sentencing guidelines scheme, and that his
sentence is unreasonable because he received the same sentence
Gonzalez received.

After United States v. Booker, 543 U.S. 220

(2005), a district court is no longer bound by the range prescribed

by the sentencing guidelines.

United States v. Hughes, 401 F.3d

540,

However,

546

(4th

Cir.

2005).

in

imposing

sentence

post-Booker, courts still must calculate the applicable guideline

range after making the appropriate findings of fact and consider
the range in conjunction with other relevant factors under the
guidelines and 3553(a). United States v. Moreland, 437 F.3d 424,
432 (4th Cir.), cert. denied, 126 S. Ct. 2054 (2006).

This court

will affirm a post-Booker sentence if it is within the statutorily

prescribed

range

and

is

reasonable.

quotation marks and citation omitted).

Id.

at

433

(internal

[A] sentence within the

proper advisory Guidelines range is presumptively reasonable.

United States v. Johnson, 445 F.3d 339, 341 (4th Cir. 2006).
Our review of the record leads us to conclude that the
district court appropriately treated the guidelines as advisory and
sentenced Carr only after considering and examining the sentencing

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guidelines and the 3553(a) factors, as instructed by Booker.

Carr suggests that his sentence is unreasonable because it was the
same as Gonzalezs, whose participation in the conspiracy Carr
alleges was greater than his.

See 18 U.S.C.A. 3553(a)(6).

Carr

and Gonzalez, however, do not have similar criminal histories.

In

addition, Carrs 151-month sentence is below the statutory maximum

sentence of life imprisonment.
(West 1999 & Supp. 2006).

See 21 U.S.C.A. 841(b)(1)(A)

Finally, neither Carr nor the record

suggests any information so compelling as to rebut the presumption

that a sentence within the properly calculated guideline range is
reasonable.

We

therefore

conclude

that

the

district

court

adequately considered the 3553(a) factors before imposing Carrs

sentence and that the sentence is reasonable.

II.
Gonzalez

contends

Gonzalez
that

the

district

court

erred

in

denying his motion for a mistrial in light of testimony that he

threatened a woman with a gun in an effort to recover stolen drug
proceeds.

Gonzalez

correctly

notes

that,

before

trial,

the

district court excluded that testimony as unfairly prejudicial

under Fed. R. Evid. 403.

This court reviews for an abuse of

discretion a district courts denial of a motion for a mistrial.

United States v. Stockton, 349 F.3d 755, 762 (4th Cir. 2003).

We

have held that [a] defendant must show prejudice in order for the

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courts

ruling

prejudice

to

exists

constitute
if

the

an

jury

abuse
could

of

discretion,

make

individual

and

no

guilt

determinations by following the courts cautionary instructions.

United States v. West, 877 F.2d 281, 288 (4th Cir. 1989).
We find no abuse of discretion in the district courts
denial of Gonzalezs motion for a mistrial.

Immediately after the

witness testimony about the excluded incident, the district court

directed the jury to disregard the witness statement and, in its
final instructions to the jury, also stated that [a]ny evidence to
which an objection was sustained by the Court, and any evidence
ordered stricken by the Court, must be entirely disregarded.
(JA-III at 1235).

We presume that the jury followed the courts

instructions to disregard the testimony about the gun.

See United

States v. Williams, 461 F.3d 441, 451 (4th Cir.), cert. denied, 127
S. Ct. 616 (2006).

Moreover, our review of the trial testimony

convinces us that the jury independently determined Gonzalezs

guilt on each count against him.

See West, 877 F.2d at 288.

Gonzalez also asserts that his trial counsel* provided

ineffective assistance by introducing evidence of a prior state
court conviction for possession of cocaine on the same day as the
offense charged in Count 5 of the indictment.

We may address

[claims of ineffective assistance of counsel] on direct appeal only

if the lawyers ineffectiveness conclusively appears from the

Gonzalez is represented by new counsel on appeal.

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record.

United States v. Baldovinos, 434 F.3d 233, 239 (4th

Cir.), cert. denied, 126 S. Ct. 1407 (2006); see Strickland v.

Washington, 466 U.S. 668, 687-88, 694 (1984) (discussing standard
for claims of ineffective assistance of counsel).

Applying these

standards, we decline to review this claim on direct appeal.

Gonzalez next challenges his sentence, asserting that the
district court erred by enhancing his base offense level two levels
for possession of a weapon under U.S. Sentencing Guidelines Manual
2D1.1(b)(1) (2005).

We review the district courts application

of the enhancement under 2D1.1(b)(1) for clear error. See United

States v. McAllister, 272 F.3d 228, 234 (4th Cir. 2001).

This

adjustment should be applied if the weapon was present, unless it

is clearly improbable that the weapon was connected with the
offense.

USSG 2D1.1(b)(1), cmt. n.3; see McAllister, 272 F.3d

at 233-34.

Our review of the record convinces us that the district

court did not clearly err in applying the enhancement.

III.

Smith

Smith asserts on appeal that the district court erred in

relying on the testimony of William Tolbert to determine the amount
of drugs attributable to him.

In evaluating Tolberts trial

testimony at sentencing, the district court did not wholly reject

it.

Rather, the court used only conservative estimates of the

portions of Tolberts testimony the court deemed to be credible.

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See Sun, 278 F.3d at 313.

Given this approach, we conclude that

the district courts credibility determination and its ultimate

determination of drug quantity should not be disturbed on appeal.

IV.

Conclusion

Accordingly, we affirm Smiths sentence, affirm Carrs

convictions and sentence, and affirm Gonzalezs convictions and
sentence.

We

also

decline

to

review

Gonzalezs

ineffective

assistance of counsel claim on direct appeal.

We dispense with

oral

contentions

argument

because

the

facts

and

legal

are

adequately presented in the material before the court and argument

would not aid the decisional process.

AFFIRMED

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