                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-17-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4862




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                                               NOT PRECEDENTIAL
                  UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT


                                 No. 06-4862


                      UNITED STATES OF AMERICA

                                      v.

                             EDWARD MAJOR,
                             a/k/a Kenneth Ross

                                                  Edward Major,
                                                           Appellant


                On Appeal from the United States District Court
                   for the Eastern District of Pennsylvania
                        D.C. Criminal No. 05-cr-0660
                      (Honorable Lawrence F. Stengel)


                           Argued March 3, 2008
       Before: SCIRICA, Chief Judge, FISHER and ROTH, Circuit Judges.

                          (Filed September 17, 2008)

PAUL M. GEORGE, ESQUIRE (ARGUED)
McKinney & George
239 South Camac Street
Philadelphia, Pennsylvania 19107
      Attorney for Appellant

MARK S. MILLER, ESQUIRE (ARGUED)
ROBERT A. ZAUZMER, ESQUIRE
Office of United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, Pennsylvania 19106
       Attorneys for Appellee
                               OPINION OF THE COURT


SCIRICA, Chief Judge.

       A jury convicted Edward Major of knowingly and intentionally possessing five

grams or more of cocaine base (“crack”), with the intent to distribute under 21 U.S.C. §

841(a)(1), (b)(1)(B). He was sentenced to 180 months, within the Sentencing Guidelines

range of 168 to 200 months. He appeals his judgment of conviction and sentence.1 We

will affirm.

                                            I.

       On June 27, 2005, City of Lancaster Police Detective Nathan Nickel saw Major

standing on the southeast corner of Prince and Walnut Streets in Lancaster, Pennsylvania.

Aware there was an open arrest warrant for Major, Detective Nickel secured the

assistance of Officer Michael Brault, who called for backup. Officer Brault confronted

Major in an alley, and Detective Nickel approached from behind, grabbing Major’s waist,

identifying himself and instructing Major to put his hands on his head with his fingers

interlocked. Major identified himself as Kenneth Ross and provided photo identification

bearing that name.

       When Detective Nickel tried to search him, Major repeatedly attempted to remove

his hands from his head. Detective Nickel attempted to place Major in handcuffs, but he


   1
   The District Court had jurisdiction under 18 U.S.C. § 3231 and we have jurisdiction
under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.

                                             2
pulled away, struck Detective Nickel in the head, and attempted to flee. Officer Brault

pushed Major, who lost his balance and fell into a fence door. Detective Nickel saw

Major make a throwing motion toward the sidewalk in front of the fence. During the

ensuing struggle Major attempted to grab Detective Nickel’s handgun and bite Officer

Brault. After Officer Brault shot pepper spray at Major’s face, Detective Nickel was able

to handcuff Major. Backup officers arrived and placed Major in a police car.

       Detective Nickel and Officer Brault searched the area where Major had made the

throwing motion and discovered a clear plastic bag containing 50 smaller bags, which

were found to contain 10.4 grams, in total, of a substance later identified as crack cocaine.

       At trial, the parties entered into a stipulation that Major had been convicted, in

2001, of possession with intent to deliver cocaine. Major’s former girlfriend, Tynia

Cooke, who lived with Major beginning in November 2004, testified that: (1) Major had

been selling drugs during 2004 and 2005, and his cellphone “rang all day” when he was

conducting business; (2) she saw Major with cocaine on seven occasions, and on two of

these occasions he had pieces of crack cocaine the size of golf balls; (3) on three

occasions she saw Major counting the proceeds of his drug sales; (4) Major told her

where he routinely conducted drug sales; and (5) after Major’s arrest, he called her and

asked her not to “snitch[]” on him, and he wrote letters to her, one of which instructed her

to “[a]sk Ben for a half ounce.” Cooke read portions of these letters while testifying.

Defense counsel had objected to Cooke’s testimony prior to trial contending it was

irrelevant and unfairly prejudicial.

                                              3
        At trial and in its jury charge, the District Court gave limiting instructions with

regard to evidence of Major’s prior criminal activities. The court instructed that the

stipulated conviction “is admitted for the limited purpose of . . . whether or not the

defendant had the intent to distribute, or sell cocaine.” Similarly, the court instructed that

the evidence of uncharged drug activities “is admitted for the limited purpose of the

defendant’s state of mind, or his intent, or his prior access to drugs, to show in the

government’s case, that he had – there is evidence as to the state of mind.” In its charge,

the court reiterated that the evidence of prior involvement in drug dealing “was admitted

on a limited point” – “whether the defendant had the intent to distribute.” The court

explained that “[t]he evidence of prior involvement in drug dealing was not admitted, and

should not be considered by you as evidence of bad character, or as conclusive on the

issue of guilt in this case. It’s not at all evidence of guilt on this charge.”

                                               II.

        We review the decision to admit evidence under Fed. R. Evid. 404(b) for abuse of

discretion.2 United States v. Butch, 256 F.3d 171, 175 (3d Cir. 2001). We permit the

admission of prior crimes evidence “‘if relevant for any other purpose than to show a

mere propensity or disposition on the part of the defendant to commit the crime.’” United


   2
       Fed. R. Evid. 404(b) provides:
        Evidence of other crimes, wrongs or acts is not admissible to prove the
        character of a person in order to show that he acted in conformity therewith.
        It may, however, be admissible for other purposes, such as proof of motive,
        opportunity, intent, preparation, plan, knowledge, identity, or absence of
        mistake or accident.

                                                4
States v. Johnson, 199 F.3d 123, 128 (3d Cir. 1999) (quoting United States v. Long, 574

F.2d 761, 766 (3d Cir. 1978)).

       The admissibility of prior bad act evidence is subject to the following guidelines:

       (1) the evidence must have a proper purpose under Rule 404(b); (2) it must
       be relevant under Rule 402; (3) its probative value must outweigh its
       prejudicial effect under Rule 403; and (4) the court must charge the jury to
       consider the evidence only for the limited purpose for which it is admitted.

United States v. Sampson, 980 F.2d 883, 886 (3d Cir. 1992) (citing Huddleston v. United

States, 485 U.S. 681, 691–92 (1988)). The government “must clearly articulate how that

evidence fits into a chain of logical inferences, no link of which can be the inference that

because the defendant committed drug offenses before, he therefore is more likely to have

committed this one.” Id. at 887. Evidence of prior drug convictions and drug

transactions may be admissible where the defendant is charged with a drug offense. Id.;

see also United States v. Wright-Barker, 784 F.2d 161, 175 (3d Cir. 1986) (evidence of

defendant’s prior conduct, which did not lead to a conviction, admissible to show absence

of mistake for violation of drug laws).

       The government contended that the prior drug conviction was relevant to the issue

of whether Major intended to distribute the crack cocaine and to whether he knowingly

possessed the crack cocaine. Similarly, it contended Cooke’s testimony, and the letters

Major sent her, were relevant to show the drugs were Major’s, and that he had access to

drugs before and after the arrest. The government’s explanation in its motions in limine

set forth how the prior crimes evidence fit within the chain of inferences, and why it was


                                              5
not introduced as propensity evidence demonstrating Major’s guilt. The District Court

found the evidence relevant to the issues of state of mind and intent. The government

fulfilled its burden to “proffer a logical chain of inference consistent with its theory of the

case” and the District Court “articulate[d] reasons why the evidence also goes to show

something other than character.” Sampson, 980 F.2d at 888.

       Major contends the proferred purposes were improper because he never asserted

the crack cocaine had not been possessed by someone with the intent to distribute; he

only contended he was not the possessor. But Major’s theory of defense does not dispel

the government’s burden to prove its case. See id. at 888 (“Issues are not irrelevant just

because the defense’s theory presupposes them to be so. The parameters are not set by

the defense’s theory of the case; they are set by the material issues and facts the

government must prove to obtain a conviction.”).3 The prior crimes evidence was

relevant to whether Major had the intent to distribute and whether he had knowledge of

the drugs, and the fact that Major did not dispute whether an intent to distribute existed

does not make the evidence inadmissible.




   3
    Major relies on Sampson, a case in which the District Court allowed proof of prior
convictions for possession with intent to distribute where the defendant only disputed his
possession, not an intent to distribute. We reversed, but explained that “we are not
holding that the evidence of Sampson’s prior drug convictions is not relevant for a proper
purpose. We simply hold that a legitimate relevance has not been properly demonstrated
and that the record does note that the court conducted a Rule 403 balancing.” Sampson,
980 F.2d at 889.

                                               6
       Major also contends, even if the evidence was relevant and admitted for a proper

purpose, “its probative value is substantially outweighed by the danger of unfair

prejudice.” Fed. R. Evid. 403. “[T]he decision whether to admit it [is] within the district

court’s considerable discretion,” Johnson, 199 F.3d at 128, and we review for abuse of

discretion, United States v. Kellogg, 510 F.3d 188, 197 (3d Cir. 2007). A District Court’s

balancing under 403 will only be reversed if its analysis and conclusion are “arbitrary and

irrational.” United States v. Universal Rehab. Servs. (PA), Inc., 205 F.3d 657, 665 (3d

Cir. 2000). Major’s prior conviction and Cooke’s testimony with regard to Major’s

ongoing drug dealing throughout their relationship is probative of Major’s intent to

distribute the crack cocaine found at the scene of his arrest. Major’s reliance on United

States v. Murray, 103 F.3d 310 (3d Cir. 1997), is misplaced. In Murray, the government

failed to provide an explanation on the record of the chain of inferences on which it was

relying, and we found there was not a proper purpose for the admission of prior crimes

evidence. Id. at 316–18. While we also found the introduction of the evidence improper

under Rule 403, this conclusion was based on a finding that the evidence had only slight,

if any, relevance. Here, the probative value of the evidence is not in doubt, its probative

value outweighs any possible prejudice, and the limiting instructions were appropriate.

We see no abuse of discretion.

       Although Major did not object to the jury instructions at trial, he now contends

they were improper. We review for plain error – “(1) an error was committed; (2) the

error was plain, that is, it is ‘clear’ and ‘obvious;’ and (3) the error ‘affected [the

                                                7
defendant’s] substantial rights.’” United States v. Nappi, 243 F.3d 758, 762 (3d Cir.

2001) (quoting United States v. Olano, 507 U.S. 725, 734 (1993)). The District Court

twice instructed the jury it should consider the prior crimes evidence for the “limited

purpose” of determining Major’s state of mind – whether Major had the intent to

distribute the crack cocaine. Major fails to overcome his burden of demonstrating plain

error.

                                             III.

         Major also challenges his sentence. He contends that his criminal history category

calculation resulted in an unreasonable Guideline range because it was based, in part, on

minor and summary offenses: (1) possession of a small amount of marijuana, (2) criminal

mischief, and (3) possession of a controlled substance.4 The Presentence Investigation

Report (“PSR”) recommended a one-level enhancement for each offense. We review a

sentence for reasonableness. United States v. Booker, 543 U.S. 220, 261 (2005); United

States v. Bungar, 478 F.3d 540, 542 (3d Cir. 2007). At the sentencing hearing, Major

objected to the PSR’s recommendation for enhancements for the marijuana and criminal

mischief offenses. The court considered Major’s arguments and rejected them. It found

each offense was punishable by a sentence of up to one year – qualifying them as

misdemeanor offenses – so the one-level enhancements were appropriate. Major’s three


   4
    U.S.S.G. § 4A1.3 allows a departure from the Sentencing Guidelines “where the court
concludes that a defendant’s criminal history category significantly over-represents the
seriousness of a defendant’s criminal history or the likelihood that the defendant will
commit further crimes.”

                                              8
convictions qualified for the one-level enhancements, and the District Court reasonably

considered these offenses when imposing the sentence.

       Major also contends the District Court’s sentence violated 18 U.S.C. § 3553(a)(6),

which requires courts to consider “the need to avoid unwarranted sentence disparities

among defendants with similar records who have been found guilty of similar conduct.”

Major cites the Pennsylvania Sentencing Guidelines as support, but district courts need

not consider whether there is a disparity between state and federal sentences. See United

States v. Jeremiah, 446 F.3d 805, 807–08 (8th Cir. 2006) (district court is “neither

required nor permitted under § 3553(a)(6) to consider a potential federal/state sentencing

disparity). But see United States v. Wilkerson, 411 F.3d 1, 10 n.** (1st Cir. 2005) (“We

express no opinion at this time about whether federal-state sentencing disparities may be

considered under the post-Booker advisory guidelines.”). The District Court did not

violate 18 U.S.C. § 3553(a)(6).

       Finally, Major contends that his Guidelines offense level results from the

unreasonable severity with which the Sentencing Guidelines treat the sale of crack

cocaine. On November 1, 2007, the Sentencing Commission adopted Amendment 706,

which decreased the base offense levels for crack cocaine offenses by two levels. United

States v. Wise, 515 U.S. 207, 219 (3d Cir. 2008) (citing U.S.S.G § 2D1.1 (Nov. 1, 2007);

U.S.S.G. Supp. to App’x C, Amend. 706). Amendment 706 became retroactive on March

3, 2008, and we found the amendment is not applied retroactively. Id. at 220. However,

we have found that appellants may obtain relief under Amendment 706 by filing a 18

                                             9
U.S.C. § 3582(c)(2) motion in the District Court after it became retroactive. Id. at

220–21. Accordingly, while we affirm the sentence, Major may seek relief under §

3582(c)(2) in district court.

                                            IV.

       Accordingly, we will affirm the judgment of conviction and sentence.




                                            10
