                               UNPUBLISHED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Affirmed in part and dismissed in part by unpublished per curiam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Unpublished opinions are not binding precedent in this circuit.
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.



                                         4
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

                                          5
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

                                                   9
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


                                                10
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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