                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-12-2009

USA v. McGurn
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3322




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                                                       NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT


                                      No. 07-3322


                          UNITED STATES OF AMERICA

                                            v.

                                 LAMAR MCGURN,

                                          Appellant


                   On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                           District Court No. 05-cr-00598-12
                  District Judge: The Honorable Michael M. Baylson


                  Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                 December 12, 2008

                 Before: MCKEE, SMITH, and ROTH, Circuit Judges

                               (Filed: January 12, 2009)


                                        OPINION


SMITH, Circuit Judge.

      A grand jury in the Eastern District of Pennsylvania returned a multi-count, multi-

defendant superceding indictment in March of 2006, charging Lamar McGurn with a

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single count of conspiring to distribute five kilograms or more of cocaine in violation of

21 U.S.C. § 846. McGurn and two others proceeded to trial, during which the

government orally amended the amount of cocaine to 500 grams. A jury found McGurn

guilty of the amended § 846 conspiracy charge. The United States District Court for the

Eastern District of Pennsylvania sentenced McGurn to, inter alia, 360 months of

incarceration. McGurn appealed, challenging both his conviction and sentence. The

District Court had jurisdiction under 18 U.S.C. § 3231. Appellate jurisdiction exists

under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). See United States v. Cooper, 437 F.3d

324, 327-28 (3d Cir. 2006). For the reasons set forth below, we will affirm.

       McGurn contends that his conviction should be set aside because the District Court

erred by: (1) denying his motion to sever his trial from that of his co-defendants; (2)

denying his motion for acquittal under Federal Rule of Criminal Procedure 29; and (3)

failing to properly charge the jury that a buyer-seller relationship is insufficient to

establish a conspiracy. The District Court also erred, according to McGurn, in sentencing

him to 360 months, by failing to depart downward in his criminal history category.

McGurn also asserts that his sentence is unreasonable, and is disproportional to his crime

and violative of the Eighth Amendment prohibition on cruel and unusual punishment.

       We review a District Court’s refusal to grant a severance for an abuse of

discretion. Zafiro v. United States, 506 U.S. 534, 539-40 (1993); United States v. Hart,

273 F.3d 363, 369-70 (3d Cir. 2001). “[E]ven with an abuse of discretion, reversal is not



                                               2
required absent ‘clear and substantial prejudice’ resulting in a manifestly unfair trial.”

Hart, 273 F.3d at 370. McGurn contends that the superceding indictment charged him

with only one count of conspiring to distribute cocaine with Sherrod Robinson (“McGurn

conspiracy”), while the other counts of the superceding indictment pertained to a separate

conspiracy, involving Robinson, Robinson’s father, Michael Harris, and James Whitted,

one of his co-defendants at trial and others (“Harris conspiracy”). McGurn claims that

the evidence from the Harris conspiracy spilled over to the McGurn conspiracy and

prejudiced his defense, as the jury was unable to compartmentalize the evidence relevant

to the charge against him.

       We find no abuse of discretion by the District Court in denying the motion to sever

the charge against McGurn. The two conspiracies were related. Robinson’s status in the

Harris conspiracy established his knowledge of the business of selling cocaine and

explained why, after the rift with his father, he worked more with McGurn. This

evidence was relevant to the conspiracy charge against McGurn, and we fail to find any

prejudice which would warrant setting aside his conviction.

       McGurn asserts that the District Court should have granted his Rule 29 motion as

the evidence was insufficient to establish the conspiracy offense charged. We have

plenary review of a district court’s ruling on a motion for judgment of acquittal. United

States v. Smith, 294 F.3d 473, 477 (3d Cir. 2002). We “must sustain the verdict if there is

substantial evidence, viewed in the light most favorable to the Government, to uphold the



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jury’s decision.” Burks v. United States, 437 U.S. 1, 16 (1978) (internal citation and

quotation marks omitted).

       According to McGurn, the evidence did not establish an agreement to work

together to achieve a common goal; an element that is critical to a § 846 conspiracy

charge. See United States v. Gibbs, 190 F.3d 188, 197 (3d Cir. 1999). At best, McGurn

submits, the evidence showed nothing more than that Robinson was a seller and he was a

buyer. In Gibbs, we noted that “[i]t is well-settled that a simple buyer-seller relationship,

without any prior or contemporaneous understanding beyond the sales agreement itself, is

insufficient to establish that the buyer was a member of the seller’s conspiracy.” Id.

Here, Robinson’s testimony described more than a simple buyer-seller relationship.

       Robinson testified how he sold increasing amounts of cocaine to McGurn several

times a week, often on credit, for more than nine months. On one occasion, Robinson

extended credit in the amount of $3,250.00 for the cocaine he gave to McGurn. In light

of McGurn’s debt, Robinson described how he re-rocked the cocaine, at McGurn’s

request, to yield more of the product for sale. McGurn was not only present during at

least one such re-rocking process – which reflects trust on Robinson’s part – he also

obtained at a subsequent date the acetone necessary to complete the process. At one point

in time, when cocaine was not readily available, McGurn contacted a supplier he knew to

obtain cocaine for Robinson and himself. On another occasion, when Robinson’s

supplier overdosed and died, Robinson advised McGurn of these facts so he would



                                              4
understand why the supply of cocaine was limited. The above evidence is more than

sufficient for a reasonable jury to find beyond a reasonable doubt the essential elements

of a § 846 conspiracy and that the conspiracy involved more than 500 grams of cocaine.

Id. at 199; see also United States v. Iglesias, 535 F.3d 150, 155 (3d Cir. 2008).

       McGurn also seeks to set aside his conviction on the basis that the District Court

erred by rejecting his proposed jury instruction regarding the fact that a conspiracy

requires more than just a buyer-seller relationship. He admits that his proposed

instruction is similar to the instruction given by the Court. The Court’s instruction was

inadequate, McGurn explains, because it implied that the buyer-seller relationship applies

only when there is a single sale.

       In United States v. Hoffecker, 530 F.3d 137 (3d Cir. 2008), we reiterated that “[w]e

review a district court’s decisions regarding jury instructions for abuse of discretion” and

that “[w]e will order a new trial on account of a district court’s refusal to give a proposed

jury instruction ‘only when the requested instruction was correct, not substantially

covered by the instructions given, and was so consequential that the refusal to give the

instruction was prejudicial to the defendant.’” Id. at 167 (internal citation omitted).

Because the Court’s charge substantially covered the contents of the proposed instruction

and did not imply that the buyer-seller relationship was limited to a single sale, we

conclude that the District Court did not abuse its discretion in declining to use McGurn’s

proposed instruction. For the above reasons, we will affirm McGurn’s conviction.



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       McGurn also challenged his sentence on several grounds, none of which are

meritorious. The record confirms that the District Court did not err in its determination

that McGurn was a career criminal. As a result, the offense level was enhanced to 37 and

the criminal history category was enhanced to a category VI, yielding a guideline range of

360 months to life.1 This range was consonant with the statutory term of not less than ten

years and not more than life imprisonment. 21 U.S.C. § 841(b)(1)(B). Because the

sentence of 360 months of imprisonment is at the lower end of the guideline range, it is

presumed to be reasonable. Gall v. United States, 128 S. Ct. 587, 597 (2007). In light of

the District Court’s thoughtful consideration of the sentencing factors in 18 U.S.C. §

3553(a) before pronouncing McGurn’s sentence to 360 months of imprisonment, we

reject McGurn’s claim that his sentence is unreasonable. Given McGurn’s criminal

history, which the District Court noted included a murder conviction, we also reject

McGurn’s contention that his sentence is grossly disproportionate to his offense of

conviction and violative of the Eighth Amendment prohibition of cruel and unusual

punishment. See Ewing v. California, 538 U.S. 11, 30 (2003).

       For the reasons set forth above, we will affirm the judgment of the District Court.




       1
       Because the District Court was aware that it had the authority to depart downward
on McGurn’s criminal history category, we lack jurisdiction to consider McGurn’s
argument that the Court erred by refusing to do so. United States v. Cooper, 437 F.3d
324, 332-33 (3d Cir. 2006).

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