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


9-26-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1111




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                                              NOT PRECEDENTIAL


        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT

                      _____________


                       No. 07-1111

                      _____________

             UNITED STATES OF AMERICA


                              v.

                    CURTIS CARTER,

                                       Appellant
                      _____________

        On Appeal from United States District Court
          for the Western District of Pennsylvania
                  (D.C. No. 05-cr-00347-3)
         District Judge: Honorable Alan N. Bloch
                       ____________

        Submitted Under Third Circuit L.A.R. 34.1(a)
                  on September 12, 2008
                      ____________

Before: SLOVITER, FUENTES and ALDISERT, Circuit Judges

                (Filed September 26, 2008)




                        OPINION
ALDISERT, Circuit Judge

       In his appeal from conviction and sentence for conspiracy to possess with intent to

distribute 500 grams or more of cocaine under 21 U.S.C § 846, Curtis Carter makes three

arguments: (a) that the United States District Court for the Western District of

Pennsylvania abused its discretion in admitting evidence of his marijuana distribution; (b)

that the District Court clearly erred in making certain findings relating to its calculation of

Carter’s sentence; and (c) that the sentence imposed was unreasonable. We affirm.

                                              I.

       The District Court acted well within its discretion in admitting evidence of Carter’s

marijuana distribution. Carter contends that the District Court should have applied the

balancing test articulated in United States v. Sampson, 980 F.2d 883 (3d Cir. 1992).

Because the evidence of marijuana distribution was direct evidence of Carter’s

relationship with his co-conspirators, rather than evidence of “other acts,” Sampson is not

relevant here. Sampson applies only to evidence admitted under Rule 404(b), Federal

Rules of Evidence. Id. at 886.

                                              II.

       We are not impressed by Carter’s assertion that the District Court made several

errors at sentencing: (a) improperly calculating the amount of cocaine Carter was

responsible for distributing; (b) enhancing Carter’s base offense level by four levels under

U.S.S.G. § 3B1.1(a); and (c) further enhancing Carter’s sentence based upon a

                                              2
determination of obstruction of justice.




                                             A.

       The District Court found that Carter was responsible for distributing over 15

kilograms of cocaine pursuant to U.S.S.G. § 2D1.1. Fact finding by a judge shall not be

set aside “unless clearly erroneous, and the reviewing court must give due regard to the

trial court’s opportunity to judge the witnesses’ credibility.” Rule 52(6), Federal Rules of

Civil Procedure. “Clearly erroneous” has been interpreted to mean that a reviewing court

may upset a finding of fact, even if there is some evidence to support the finding, only if

the court is left with “the definite and firm conviction that a mistake has been

committed.” United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948). This means the

appellate court must accept the factual determination of the fact finder unless that

determination “either (1) is completely devoid of minimum evidentiary support displaying

some hue of credibility, or (2) bears no rational relationship to the supportive evidentiary

data.” Krasnov v. Dinan, 465 F.2d 1298, 1302 (3d Cir. 1972).

       Testimony of several witnesses established that Carter trafficked more than 15

kilograms of cocaine, and the District Court determined that these witnesses were “very

credible.” App. 575. We accord “great deference to a presiding judge’s credibility

determinations in sentencing proceedings because she is able to directly observe a

testifying witness’s tone and demeanor.” United States v. Leekins, 493 F.3d 143, 150 (3d



                                              3
Cir. 2007).




                                             B.

       Carter contends that the District Court erred in enhancing his offense level by four

levels under U.S.S.G. § 3B1.1(a). Under § 3B1.1(a), the sentencing court may increase

the offense level by four levels “[i]f the defendant was an organizer or leader of a

criminal activity that involved five or more participants or was otherwise extensive.”

U.S.S.G. § 3B1.1(a). A “defendant must have been the organizer, leader, manager, or

supervisor of one or more other participants” to qualify for this enhancement. Id. § 3B1.1,

cmt. n. 2.

       The District Court concluded that Carter qualified for an enhancement under §

3B1.1(a). Sufficient evidence indicates that Carter functioned as a leader and organizer of

an extensive cocaine distribution conspiracy involving more than five participants. He

organized trips to Columbus, Ohio, to obtain large amounts of cocaine for his co-

conspirators and orchestrated sales between co-conspirators when he was out of town.

See App. 288-290. He also exerted control over the participants of the conspiracy when

he excluded a co-conspirator from the enterprise because the co-conspirator attempted to

sell Carter’s cocaine back to Carter at a higher price. Id. at 442-443.

                                             C.

       We are satisfied with the District Court’s finding that Carter obstructed justice



                                              4
pursuant to § 3C1.1. Obstruction of justice under U.S.S.G. § 3C1.1 includes “threatening,

intimidating, or otherwise unlawfully influencing a . . . witness . . . directly or indirectly,

or attempting to do so.” U.S.S.G. § 3C1.1, cmt. n. 4(a). Carter threatened a government

witness when, in a voice message for a witness, he said, “loose lips sink ships” and “you

should be running instead of running your mouth.” App. 292. The following exchange

about those statements occurred between the witness and the prosecution:

              Q. And how did you take that? What did you interpret that to
              mean? Did you consider it a threat?

              A. Yes.

Id. at 295.

                                              III.

       The District Court gave meaningful consideration to the 18 U.S.C. § 3553(a)

factors and concluded that Carter’s sentence was reasonable. The burden to show

unreasonableness rests on the party challenging the sentence, and this Court gives

deference to a district court’s judgment on whether sentencing was reasonable under §

3553(a). United States v. Cooper, 437 F.3d 324, 330 (3d Cir. 2006). A district court need

not state on the record that it has explicitly considered each of the § 3553(a) factors or

record its consideration of each factor. Instead, “[t]he record must demonstrate the trial

court gave meaningful consideration to the § 3553(a) factors.” Id. at 329.

        Here, the District Court considered “the nature and circumstances of the offense

and the history and characteristics of the defendant,” 18 U.S.C. § 3553(a)(1); “the need

                                               5
for the sentence imposed to reflect the seriousness of the offense, to promote respect for

the law, and to provide just punishment,” id. § 3553(a)(2)(A); “the need for the sentence

imposed to afford adequate deterrence to criminal conduct,” id. § 3553(a)(2)(B); and “the

need for the sentence imposed to protect the public from further crimes of the defendant,”

id. § 3553(a)(2)(C). See App. 543, 568-577.

                                           *****

       We have considered all of the contentions presented by the parties and conclude

that no further discussion is necessary.

       The judgment of the District Court will be affirmed.




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