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


4-7-2009

USA v. Percy Travillion
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-1337




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"USA v. Percy Travillion" (2009). 2009 Decisions. Paper 1577.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1577


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                                             NOT PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT
                __________

                    No. 08-1337


         UNITED STATES OF AMERICA

                           v.

         PERCY WILLIAM TRAVILLION,

                                       Appellant.




   On Appeal from the United States District Court
      for the Western District of Pennsylvania
              (D. C. No. 04-cr-00144-7)
      District Judge: Hon. Joy Flowers Conti




     Submitted under Third Circuit LAR 34.1(a)
                on February 3, 2009


Before: RENDELL, JORDAN and ROTH, Circuit Judges

            (Opinion filed: April 7, 2009)




                   OPINION
ROTH, Circuit Judge:

       Percy Travillion appeals the judgment of the United States District Court for the

Western District of Pennsylvania. For the reasons discussed below, we will affirm.

       Because the parties are familiar with the facts, we discuss them only briefly here.

On June 16, 2004, a grand jury returned a nineteen-count indictment charging eight

individuals, including Travillion, with various drug-trafficking offenses. Travillion was

charged in three of the nineteen counts. Specifically, Count Nine charged Travillion with

conspiracy to distribute fifty grams or more of crack cocaine. Count Ten charged him

with possession with intent to distribute fifty grams or more of crack cocaine, and Count

Thirteen charged him with conspiracy to distribute 500 grams or more of powder cocaine.

After a seven-day trial, a jury convicted Travillion of all three Counts. The District Court

then sentenced him to 188 months of incarceration on each of the three counts, to be

served concurrently, and five years of supervised release. Travillion appeals three issues;

we have jurisdiction over his appeal under 8 U.S.C. § 1291.

       Travillion first argues that the evidence presented was insufficient to support the

jury’s convictions for all three counts. Our review of an insufficiency of the evidence

challenge is plenary. United States v. Taftsiou, 144 F.3d 287, 290 (3d Cir. 1998). We

must affirm the convictions if, when viewing the evidence in the light most favorable to

the government, a rational trier of fact could have found Travillion guilty beyond a

reasonable doubt. See United States v. Coyle, 63 F.3d 1239, 1243 (3d Cir. 1995).



                                             2
       Travillion’s insufficiency argument attacks the government’s evidence that he

conspired with Michael Good, a drug trafficker in Pittsburgh; instead, according to

Travillion, the government merely proved a buyer-seller agreement with Good.

Travillion’s argument fails because the record is replete with sufficient evidence

supporting the jury’s determination that he had an agreement, with the common purpose

of distributing drugs, with Michael Good. Indeed, Good himself testified for the

government to this effect against Travillion.

       Travillion next argues that the District Court erred in two ways when instructing

the jury. First, he claims that the District Court erred by refusing his request to provide a

corpus delicti instruction for Count Ten. Second, Travillion claims that the District Court

erred by instructing the jury that it must take any stipulated facts as true. We review the

District Court’s refusal to give the requested instruction for abuse of discretion. United

States v. Weatherly, 525 F.3d 265, 269 (3d Cir. 2008). We review unpreserved errors

regarding jury instructions for plain error. United States v. Cornish, 103 F.3d 302, 306

(3d Cir. 1997). Travillion preserved only his first claim.

       The purpose of the corpus delicti1 doctrine is to prevent convictions of criminal

defendants based solely upon untrue confessions. See Warszower v. United States, 312

U.S. 342, 346–47 (1941). Travillion insists that a corpus delicti instruction was necessary




   1
    Corpus delicti means “the body or substance of the crime charged.” Government of
Virgin Islands v. Harris, 938 F.2d 401, 408 (3d Cir. 1991).

                                                3
because the only evidence to support Count Ten was a tape-recorded statement with

Good, and he was thus subjected to a conviction based on “his own uncorroborated

confession.” But we have held that tape-recorded statements “made prior to or during the

commission of a crime”—like here—“need not be corroborated.” United States v.

Eufrasio, 935 F.2d 553, 576 (3d Cir. 1991). The District Court therefore did not abuse its

discretion in refusing Travillion’s corpus delicti instruction.

       Travillion’s second jury-instruction claim fails, too. To establish plain error, a

defendant must satisfy four elements: (1) an error occurred, (2) the error was plain, i.e.,

clear, (3) the error must have affected substantial rights, and (4) that this Court should

correct the error because it seriously affects the fairness, integrity, or public reputation of

judicial proceedings. See United States v. Stansfield, 101 F.3d 909, 920 (3d Cir. 1996)

(internal quotations and citations omitted). Travillion fails at least prongs three and four

because he does not contest the factual accuracy of the stipulations, and he entered into

them voluntarily. See Cornish, 103 F.3d at 306.

       Travillion finally argues that the District Court committed two procedural errors in

sentencing, and that it erred by requiring him to supply a DNA sample. Where, as here, a

challenge is made to the calculation of the Guidelines range, we review the District

Court’s interpretation of the Sentencing Guidelines de novo. United States v. Wood, 526

F.3d 82, 85 (3d Cir. 2008).




                                               4
       First, he claims that the District Court erred by assigning him one criminal-history

point for a state offense where “no further penalty” was the decision. According to

Travillion, that decision was not a “sentence,” and the District Court therefore should not

have added the point. Travillion’s claim fails because that state offense consisted of two

counts, for which the state court imposed concurrent sentences of probation after he plead

nolo contendere to both. That state court determination was thus a sentence under the

Guidelines. See U.S.S.G. §4A1.2(a)(1). The District Court properly increased his

Guideline Range.

       Travillion’s second jury-sentencing claim fails, too. He asserts that the District

Court erred in assigning him two points for obstruction of justice because the record does

not support a finding that he willfully lied during his trial testimony. An enhancement for

obstruction of justice requires findings that the defendant gave false testimony concerning

a material matter with the willful intent to provide false testimony. United States v.

Johnson, 302 F.3d 139, 154 (3d Cir. 2002) (citation and internal quotation marks

omitted). Here, the Jury concluded that Travillion did lie about the type of drug at issue

for Count Ten: Travillion testified that heroin was the drug, but the jury necessarily

rejected this because it found him guilty for possession with intent to distribute crack

cocaine. An enhancement for obstruction of justice is appropriate where the jury

necessarily rejects a defendant’s testimony to find him guilty. Id.




                                              5
       He finally claims that Congress exceeded its Commerce Clause authority in

enacting the DNA Analysis Backlog Elimination Act, which the District Court relied on

to mandate that he supply a DNA sample. We agree with the reasoning of the Ninth

Circuit Court of Appeals that Congress acted within its power in enacting this Act

because the personal, identifying information contained in a DNA sample constitutes a

“thing” in interstate commerce. See United States v. Reynard, 473 F.3d 1008, 1023 (9th

Cir. 2007).

       We will thus affirm the judgment of the District Court.




                                            6
