                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                     No. 10-4090
                                    ____________

                           UNITED STATES OF AMERICA

                                           v.

                             CHARLES LAMONT TOLER,
                                               Appellant
                                    ____________

                    On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                                 (D.C. No. 09-cr-00728)
                    District Judge: Honorable Mitchell S. Goldberg
                                     ____________

                      Submitted Under Third Circuit LAR 34.1(a)
                                 September 20, 2011

       Before: FISHER, HARDIMAN and GREENAWAY, JR., Circuit Judges.

                             (Filed: September 20, 2011)
                                    ____________

                             OPINION OF THE COURT
                                  ____________

HARDIMAN, Circuit Judge.

      Charles Lamont Toler appeals a number of issues arising from his trial, conviction,

and sentencing. We will affirm.



                                           I
       Because we write for the parties, who are well acquainted with the case, we

recount only the essential facts and procedural history. Although Toler urges us to

second-guess the jury‘s credibility determinations, and reweigh the evidence and the

inferences drawn therefrom, we recite the facts in the light most favorable to the

Government in light of the jury‘s verdict. See United States v. Iglesias, 535 F.3d 150,

155 (3d Cir. 2008).

       In January 2009, a reliable confidential informant told the Drug Task Force in

Delaware County, Pennsylvania, that Toler was selling cocaine from an apartment leased

to Toler‘s mother. Led by veteran Police Officer Edward Rosen, the Task Force

surveilled the apartment and confirmed that Toler entered it regularly, sometimes coming

and going several times in one day. The Task Force also arranged for the informant to

make two controlled purchases of cocaine from Toler. On both occasions, Toler went to

the apartment before and after the transaction.

       Officer Rosen obtained a search warrant for Toler‘s person and car, as well as his

mother‘s apartment. It authorized the seizure of drugs, drug paraphernalia, proof of

residency and control, money, transaction records, and weapons. The following day,

officers executed the warrant, arresting Toler as he exited the apartment. A search of

Toler‘s person turned up 31.7 grams of cocaine and $1,620 in cash. Toler then provided a

key to the apartment, and the officers and Toler went inside.

       Inside the apartment, Rosen directed Toler to sit on a couch in the living room.

Rosen read Toler his Miranda rights, and Toler indicated that he understood and waived
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them. As the officers began to search the residence, Rosen asked Toler if there was

cocaine in the apartment, and Toler directed the officers to a bedroom closet. Asked a

second time, Toler also gestured towards a safe, which he told Rosen contained more

cocaine and a gun. In the closet, officers found 766.2 grams of cocaine, as well as several

boxes of Ziploc bags, digital scales, latex gloves, coffee filters, a razor blade, and a jar of

a common cutting agent called inositol. In addition, they found Toler‘s personal papers,

including his birth certificate, Social Security card, paternity papers, and photographs.

Once finished in the bedroom, Rosen asked Toler for the combination to the safe, which

Toler recited from memory. Inside the safe, officers found another 37.3 grams of

cocaine, $5,795 in cash, and a Smith & Wesson .40 caliber handgun. In total, 835.2

grams of cocaine were recovered from Toler and the apartment. During a subsequent

search of Toler‘s car, Rosen found a small notebook with lists of names and numbers,

described by Rosen as a ―tally sheet.‖

       While the evidence was being collected, several officers spoke with Toler.

Looking ―defeated,‖ Toler explained that he knew ―he had to get out of the game‖ but

admitted to recently purchasing a kilogram of cocaine for $39,000, the resale of which

was going to be ―his last run.‖ Toler also told Rosen that although the apartment

belonged to his mother, all of the items seized belonged to him.

       Toler was charged with four counts: possession with intent to distribute 500 grams

or more of cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B); possession with

intent to distribute 500 grams or more of cocaine in or near a school zone, in violation of
                                               3
21 U.S.C. § 860(a); possession of a firearm in furtherance of a drug trafficking crime, in

violation of 18 U.S.C. § 924(c)(1); and possession of a firearm by a convicted felon, in

violation of 18 U.S.C. §§ 922(g)(1) and 924(e). He went to trial in May 2010, and a jury

found him guilty on all four counts. The District Court calculated Toler‘s sentencing

range under the United States Sentencing Guidelines (USSG) and determined that his

total offense level of 37, criminal history category of VI, and career offender status

resulted in an advisory range of 420 months to life in prison. The Court imposed a

sentence of 420 months—a mandatory 60-month sentence on the § 924(c) offense

consecutive to a 360-month sentence for the drug and § 922(g) offenses—followed by

eight years of supervised release and a special assessment of $400.

                                             II

       Although Toler raises a grab bag of issues relating to every phase of the

proceedings, none is worthy of extensive discussion.

       First, Toler concedes that two of his arguments—his contentions that (1) the

District Court erred in instructing the jury on the § 860(a) count and (2) his criminal

history category should not have accounted for crimes to which he pleaded guilty because

a jury never actually found him guilty—are contrary to this Court‘s precedent.

Appellant‘s Br. at 49, 60 n.33 (citing United States v. Rodriguez, 961 F.2d 1089, 1091–

93, 1095 (3d Cir. 1992) and United States v. Ordaz, 398 F.3d 236 (3d Cir. 2005)).

       Toler‘s remaining claims fare no better. The District Court‘s decisions to admit

Toler‘s statements to officers at the apartment, the items seized from his person, and the
                                              4
items seized from the safe were all proper in light of the evidence that Toler was informed

of and voluntarily waived his Miranda rights, see Moran v. Burbine, 475 U.S. 412, 421

(1986), and that the searches were within the scope of a valid search warrant, see App.

946, 955; United States v. Ross, 456 U.S. 798, 821–22 (1982). Moreover, the Court‘s

admission of audio tapes of Toler‘s prison telephone conversations with his sister was

proper because there was ―clear and convincing evidence‖ that Toler was the speaker, see

United States v. Starks, 515 F.2d 112, 121 (3d Cir. 1975) (internal quotation marks and

citation omitted), and the tapes, though quite damaging to Toler‘s case, were not unfairly

prejudicial, Carter v. Hewitt, 617 F.2d 961, 972 (3d Cir. 1980).1

       The District Court also acted well within its discretion in denying Toler‘s motion

to disclose the name of the Government‘s confidential informant. Toler offered, and

continues to offer, nothing more than ―mere speculation‖ that disclosure would be

helpful, which is ―not sufficient‖ to override the government‘s privilege to withhold the

identity of an informant. United States v. Jiles, 658 F.2d 194, 197 (3d Cir. 1981); see

Roviaro v. United States, 353 U.S. 53, 59 (1957).

       All of Toler‘s sufficiency-of-the-evidence arguments ask us to reassess the

evidence presented at trial. As an appellate court, we are not at liberty to make such

factual findings. Rather, we review the record only to ensure that the evidence, when



       1
        We acknowledge the Government‘s argument that Starks was abrogated by
Federal Rule of Evidence 901(a), which requires a lesser showing to authenticate
evidence. However, because the Government in this case met even the higher ―clear and
                                             5
―‗consider[ed] . . . in the light most favorable to the government,‘‖ was sufficient for

―‗any rational trier of fact [to] find guilt beyond a reasonable doubt.‘‖ Iglesias, 535 F.3d

at 155–56 (quoting United States v. Lore, 430 F.3d 190, 204 (3d Cir. 2005)). We find

that the evidence was sufficient to support the verdict on every count. Although much of

the evidence was circumstantial—e.g., the proximity of the drugs and gun to Toler‘s

personal documents, suggesting they all belonged to him; Toler‘s knowledge of the safe‘s

combination, suggesting that he had knowledge of its contents; Toler‘s possession of

Ziploc bags, scales, a cutting agent, etc., suggesting he intended to distribute the drugs;

the proximity of the gun to the drugs, suggesting the gun was intended to be used to

protect the drugs—such evidence is enough to overcome a sufficiency challenge. See id.

at 156. Moreover, the circumstantial evidence offered by the Government‘s experts was

both admissible and adequate to support the intended inferences—i.e., that the evidence

found in Toler‘s possession was consistent with what one would expect to find in the

apartment of a drug distributor, and that the gun was a real Smith & Wesson that traveled

across state lines. See FED. R. EVID. 703, 704; United States v. Watson, 260 F.3d 301,

308–09 (3d Cir. 2001).

       Finally, we are satisfied that the District Court‘s sentence was reasonable. The

District Court followed the three-step process of United States v. Gunter, 462 F.3d 237,

247 (3d Cir. 2006), and gave ―rational and meaningful consideration [to] the factors


convincing evidence‖ standard, we need not comment on the relationship between Starks
and Rule 901.
                                              6
enumerated in 18 U.S.C. § 3553(a)‖ as required by United States v. Grier, 475 F.3d 556,

571 (3d Cir. 2007) (en banc). Taking into account Toler‘s background—both his difficult

childhood and his extensive criminal history—the District Court imposed a sentence at

the low end of the Guidelines range, which was an eminently reasonable choice. See

United States v. Tomko, 562 F.3d 558, 568 (3d Cir. 2009) (en banc).

       In sum, nothing in the record leads us to conclude that the District Court made any

clearly erroneous factual findings, erred in its interpretations or applications of the law,

abused its discretion, or otherwise acted unreasonably in any way.

                                               III

       For the foregoing reasons, we will uphold the jury‘s verdict and affirm the District

Court‘s rulings, instructions, and sentence.




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