U.S. v. Myers

• Decision Date: 16 December 2009
• Docket Number: No. 08-4343.,08-4343.
• Citation: 589 F.3d 117
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jeffrey Lynn MYERS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

589 F.3d 117

UNITED STATES of America, Plaintiff-Appellee, v. Jeffrey Lynn MYERS, Defendant-Appellant.

No. 08-4343.

United States Court of Appeals, Fourth Circuit.

Argued: October 27, 2009.

Decided: December 16, 2009.

ARGUED:

Ann Loraine Hester, Federal Defenders of Western North Carolina, Inc., Charlotte, North Carolina, for Appellant. Amy Elizabeth Ray, Office of the United States Attorney, Asheville, North Carolina, for Appellee.

ON BRIEF:

Claire J. Rauscher, Executive Director, Cecilia Oseguera, Federal Defenders of Western North Carolina, Inc., Charlotte, North Carolina, for Appellant. Gretchen C.F. Shappert, United States Attorney, Charlotte, North Carolina, for Appellee.

Before KING, Circuit Judge, HAMILTON, Senior Circuit Judge, and ANTHONY J. TRENGA, United States District Judge for the Eastern District of Virginia, sitting by designation.

Affirmed by published opinion. Judge KING wrote the opinion, in which Senior Judge HAMILTON and Judge TRENGA joined.

OPINION

KING, Circuit Judge:

Jeffrey Lynn Myers pursues this appeal from a 360-month sentence imposed in the Western District of North Carolina following his jury convictions on multiple drug offenses. Myers presents two contentions on appeal: First, that the district court erred in excluding certain evidence relating to the prior criminal conduct of a prosecution witness; and, second, that the court erred in sentencing him to a prison term in excess of his properly calculated advisory Guidelines range. As explained below, we reject those contentions and affirm.

I.

A.

Myers was initially indicted in the Western District of North Carolina on June 28, 2006. An amended six-count indictment — the operative charging document here — was returned on December 19, 2006. It alleged five counts against Myers: conspiracy to distribute cocaine base, commonly known as "crack" or "crack cocaine," and cocaine powder, in contravention of 21 U.S.C. § 846 (Count One); plus four counts of possession with intent to distribute crack and cocaine powder, in contravention of 21 U.S.C. § 841(a)(1) (Counts Two, Three, Four, and Five). An eighteen-year-old codefendant named Rachel Couch was charged with the conspiracy offense plus a single count of possession with the intent to distribute crack (Count Six). Myers pleaded not guilty and was tried by jury in January 2007. Couch pleaded guilty to both of her charges and testified against Myers. On January 26, 2007, the jury returned a guilty verdict against Myers on all five counts.

1.

Myers's first appellate contention concerns the evidence underlying his conviction on Count Five. The key prosecution witness against Myers on that charge, which alleged an § 841(a)(1) offense on May 16, 2006, was a man named John Redmon. Redmon, a convicted felon, had been arrested in February 2006 on a charge that he sold crack cocaine to an informant on November 15, 2005. After his arrest, Redmon contacted David Ramsey, a detective in the Iredell County Sheriff's Office, offered to serve as an informant to "work[ ] [the charges] off," and began to cooperate with the authorities. J.A. 213. Redmon was never convicted of any charge arising from the November 2005 drug transaction.

With Redmon's cooperation, Detective Ramsey arranged for a controlled drug purchase in which Redmon was to purchase drugs from Myers with $900 in marked cash. This transaction was completed on May 16, 2006, on Clay Street in Statesville, North Carolina, a drug-infested area that was familiar to Redmon. Myers met Redmon on Clay Street, where Redmon paid Myers the $900 cash for an ounce of cocaine. Redmon then met with Detective Ramsey at a nearby rendezvous point. Redmon's trial testimony — that Myers sold drugs to him on May 16, 2006 — is the only direct evidence against Myers on Count Five.

During cross-examination, Myers's lawyer sought to impeach Redmon with the facts underlying his November 2005 drug transaction and his February 2006 arrest for that offense. Redmon admitted that he had been arrested in February 2006, and that his arrest arose from a drug transaction with an informant in November 2005. Redmon challenged the accuracy of the police report relating to his arrest, however, including its assertion that he had advised the informant to wait while he finished cooking crack, that he had sold the informant an eight-ball of crack, and that he had secreted drugs in his mouth during the arrest. To the contrary, Redmon insisted that he made no such statement to the informant, that he had not "sold anybody anything," and that he had not placed anything in his mouth when he was arrested. J.A. 226-27.

2.

Following Redmon's testimony, the prosecution called Detective Ramsey to the witness stand. On cross-examination, Myers's lawyer focused on disputing the transaction between Myers and Redmon on May 16, 2006, which underlies Count Five. More specifically, the defense lawyer sought to undermine Redmon's credibility, and to show that Myers was not the source of the cocaine that Redmon returned to Detective Ramsey after the Clay Street transaction. In that regard, Ramsey admitted that Redmon knew other individuals on the Clay Street block where the drug buy occurred; that Redmon's sister resided on that block; that it is easier in that area for non-outsiders to purchase drugs; and, that "[Redmon] could have brought drugs from some people." J.A. 297.

B.

At the conclusion of its case-in-chief, the Government objected to evidence that it expected Myers to present. Specifically, the Government maintained that Myers would call police officers "in an attempt to impeach Mr. Redmon on a specific act of criminal conduct," i.e., the November 2005 drug sale that led to Redmon's arrest in February 2006. J.A. 359. The prosecutor contended that such evidence was inadmissible under Federal Rule of Evidence 608(b), which bars the use of extrinsic evidence to attack a witness's character for truthfulness.¹ Myers's lawyer argued, on the other hand, that such evidence was admissible under Federal Rule of Evidence 404(b), as proof of Redmon's "opportunity, plan, knowledge, absence of mistake or accident, all in conformity with his being a drug dealer at the time and around the time of this transaction." Id. at 367.² According to Myers's lawyer, the officers he desired to call would testify that Redmon indeed cooked crack while an informant waited, sold crack to that informant, and, when arrested, put something in his mouth that he later identified as ecstasy.

After assessing Myers's proffer and the contentions of counsel, the district court ruled in favor of the prosecution, explaining that the proffer concerned "evidence to which [Redmon] admitted, being a former crack dealer and having been arrested as he testified and so forth. So it's not a matter of high probative value for the defendant even if it were otherwise admissible." J.A. 366-67. The court also observed that the proposed evidence would require "a mini trial." Id. at 369. As a result, the court sustained the objection and barred the proffered defense evidence. The case against Myers was then submitted to the jury, which returned its guilty verdict on January 26, 2007.

C.

1.

On March 12, 2008, Myers appeared for his sentencing hearing. According to the Presentence Investigative Report (the "PSR"), Myers had an offense level of 30 and a criminal history category of HI, which resulted in an advisory Guidelines range of 121 to 151 months of imprisonment. The district court adopted the PSR but reduced the drug weight attributed to Myers, resulting in an offense level of 28 and an advisory Guidelines range of 97 to 121 months. Myers was nevertheless subject to a mandatory minimum sentence of 10 years, resulting in a final Guidelines range of 120 to 121 months.

During the sentencing hearing, the prosecution contended that Myers's Guidelines range underrepresented his criminal history. It maintained that, but for the prohibition in the Guidelines on considering outdated and stale sentences, specified in section 4A1.2(e), Myers would be sentenced as a career offender.³ The Government further asserted that three of Myers's four prior convictions were outdated only because his criminal career had been interrupted when he was imprisoned for more than fifteen years between December 1990 and January 2006. Thus, the prosecution asserted that Myers was a "de facto" career offender and suggested that the district court consider the following four convictions, including the three that were otherwise outdated:

• a 1990 conviction in a federal drug conspiracy case, resulting in a sentence of 210 months, with four years supervised release;

• a 1986 conviction for possession with intent to sell and deliver cocaine, and the sale or delivery of cocaine, resulting in a sentence of five years;

• a 1985 conviction for felonious possession of a controlled substance with intent to sell and deliver, and the sale of cocaine, resulting in a sentence of five years; and

• a 1979 conviction for robbery and assault with a deadly weapon, resulting in a sentence of ten years, with five years probation.⁴

Under the career offender provision of the Guidelines, however, Myers's 1990 conviction was the only one that "counted," as Myers had been incarcerated on that conviction within fifteen years of commencing the instant offense of conviction. See USSG §§ 4B1.1, 4B1.2.

2.

Contending that there was a substantial underrepresentation in the seriousness of Myers's criminal history, the Government argued to the sentencing court that Myers was a de facto career criminal and requested an upward departure, pursuant to section 4A1.3 of the Guidelines, or alternatively, an upward variance.⁵ The prosecution explained that Myers, who was forty-three years old when the instant offense of conviction occurred in 2006, began his criminal career at the age of sixteen. According to the prosecutor, Myers had been "arrested or cited 24 times since 1979, eight of which ...