United States v. Archible
| Decision Date | 26 July 2022 |
| Docket Number | 21-4428 |
| Parties | UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DAWHAN TERRELL ARCHIBLE, a/k/a Sosa, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fourth Circuit |
UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
DAWHAN TERRELL ARCHIBLE, a/k/a Sosa, Defendant-Appellant.
No. 21-4428
United States Court of Appeals, Fourth Circuit
July 26, 2022
UNPUBLISHED
Submitted: April 25, 2022
Appeal from the United States District Court for the Eastern District of Virginia, at Newport News. David J. Novak, District Judge. (4:20-cr-00015-DJN-LRL-1)
ON BRIEF:
Maureen Leigh White, Richmond, Virginia, for Appellant.
Jessica D. Aber, United States Attorney, Richmond, Virginia, Lisa R. McKeel, Assistant United States Attorney, Brian J. Samuels, Assistant United States Attorney, Newport News, Virginia, Jacqueline R. Bechara, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.
Before GREGORY, Chief Judge, DIAZ, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM
This case is about a drug deal that resulted in the murder of Mr. Luke Dudley. Now, on appeal, Defendant, Dawhan Terrell Archible, challenges the sufficiency of the evidence supporting his conviction for two crimes: use of a firearm resulting in death and conspiracy to distribute cocaine base. First, because Archible waived his challenge to the drug conspiracy conviction in his Rule 29 motion, we may only reverse if there is a manifest miscarriage of justice. We do not find that such miscarriage of justice occurred because the jury heard voluminous evidence, including Archible's admissions, that he made an agreement to trade heroin for crack cocaine with his associate, and agreed to exchange that crack cocaine for Percocet with Mr. Dudley. Second, there is no basis for vacating Archible's conviction for the use of a firearm resulting in Mr. Dudley's death because the jury heard ample evidence supporting this conviction as well, including Archible's admissions. Thus, the district court's judgment is affirmed.
I.
On January 15, 2017, the Newport News Police Department received a call about a burglary taking place at 3005 Madison Avenue-a boarding house and Mr. Dudley's residence. When police arrived, both the front door and an upstairs bedroom door had been forced open, and Mr. Dudley was deceased on the floor with multiple gunshot wounds. Detectives also found bullet fragments and blood in the main entrance and on the door handle to an upstairs bedroom. Through information obtained from confidential sources and cooperating witnesses, detectives determined that Archible, a five-star Nine-Trey
Blood Nation gang member, and two unindicted coconspirators ("UNC 1 and 2") were involved in the murder. Later, the detectives determined that the DNA from the blood found on the scene matched Archible.
At trial, the jury heard evidence showing that, on January 15, 2017 at around 6:00 A.M., Archible; and UNC 1, Keandre Ricks ("Dre" or "Ricks"), a three-star Blood gang member; and UNC 2, Delvon Nicholson ("Von" or "Nicholson"), were at Carrie Williams's ("C.W.") residence. At this time, Mr. Dudley approached Marquis Jones ("Jones" or "Snooks"), who was outside C.W.'s residence. Mr. Dudley wanted to trade Percocet for crack cocaine. Jones then went inside to inform Archible of the trade. Though Archible was interested in the trade, he only had heroin. So, Archible traded Ricks about 3 grams of heroin for about 3.5 grams of crack cocaine, worth about $200. J.A. 663. Archible then provided Mr. Dudley with the crack cocaine in exchange for "30-milligram (mg) Percocets." J.A. 1094. However, Mr. Dudley did not have the Percocets on hand. So, Mr. Dudley suggested that Archible accompany him to go back to Mr. Dudley's residence to retrieve the Percocets. Archible agreed and went to Mr. Dudley's residence-a few blocks away from C.W.'s residence-to retrieve the Percocets.
When Archible returned to C.W.'s residence, Jones informed Archible that Mr. Dudley had given him "sugar rather than Percocets." J.A. 1094 (Presentence Report "PSR" at ¶ 12). In response, Archible told Ricks to "'grab the junk,' 'grab the pole,'" referencing a gun, and instructed Ricks and Nicholson to accompany him to walk to Mr. Dudley's residence to get the Percocets that they were owed. Id. When they arrived, Mr. Dudley did not answer the door. So, Archible forced open the door with a knife and cut himself in
the process. Archible and Ricks entered the house, and Archible instructed Nicholson to be the lookout outside. After they entered, Mr. Dudley opened his room door, and, according to Archible, "it was apparent that [Mr. Dudley] had smoked a substantial amount of the crack cocaine." J.A. 1094 (PSR at ¶ 13). Then, Ricks hit Mr. Dudley in the head with the gun and Archible questioned Mr. Dudley about the location of the Percocets. Mr. Dudley screamed, was struck again, and then explained that "the drugs were in an upstairs bedroom," a room that "had a padlock and [that Archible] kicked [] in." Id. As Ricks held Mr. Dudley at gunpoint, Archible instructed Mr. Dudley to find the drugs but when he was "unable to locate the Percocets, he was struck in the face." J.A. 1094 (PSR at ¶ 14). Then, Archible "took possession of the firearm" and held it on Mr. Dudley and "ordered [Ricks] to look for the drugs." Id. Ultimately, neither Ricks nor Archible found the Percocets, and Mr. Dudley was shot and killed. After the shooting, Archible, Ricks, and Nicholson returned to C.W.'s residence, where Archible "told C.W. to get him a black trash bag," and Archible "proceeded to remove his coveralls and place them in the trash bag." J.A. 1095 (PSR at ¶ 15). Archible told C.W. to stay quiet, and Archible left town sometime after the incident.
On April 12, 2017, Archible was convicted on other state offenses and his supervised release, for a previous federal sentence, was revoked. On October 19, 2017, while serving his federal sentence, he was interviewed by Special Agent Anthony Ambrose, from the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF"), and Detective Ryan Norris. During the interview, Archible voluntarily described the events of January 15, 2017, and he admitted that he agreed to the drug deal with Mr. Dudley, that Ricks killed
Mr. Dudley over the Percocets, that Archible gave Ricks the firearm used to kill Mr. Dudley, and that he instructed Nicholson to get rid of the gun. See J.A. 882-96.
On October 8, 2020, Archible was named in a five-count Superseding Indictment filed in the Eastern District of Virginia, Newport News Division charging him with: Use of Firearm Resulting in Death, in violation of 18 U.S.C. § 924(c)(1), (j) and (2) (Count One); Conspiracy to Interfere with Commerce by Robbery, in violation of 18 U.S.C. § 1951(a) (Count Two); Attempt to Interfere with Commerce by Robbery, in violation of 18 U.S.C. § 1951(a) and (2) (Count Three); Drug Conspiracy, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), and 846 (Count Four); Distribution of Cocaine Base, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) (Count Five).
On March 17, 2021, and at the end of a five-day trial, Archible moved for a directed verdict of acquittal on Count One, which the district court denied. J.A. 694. Subsequently, the jury found him guilty of all five counts. On June 8, 2021, Archible again filed a motion to set aside the verdict, which the court denied on July 28, 2021. On August 10, 2021, the district court sentenced Archible to life in prison on Count One to run consecutively to all other terms of imprisonment and sentenced him to 240 months, to be severed concurrently, on Counts Two through Five. J.A. 1079-86. Archible filed a timely appeal to this court and raises two arguments which we examine below.
II.
First, Archible argues that the government did not present sufficient evidence showing that Archible and his alleged co-conspirators jointly engaged in, or conspired to
engage in, the distribution of cocaine base either before or after the single spontaneous exchange of crack for Percocet with Mr. Dudley. See Opening Br. at 2.
A.
As an initial matter, Archible argues that we should review this issue de novo because, "[a]lthough trial counsel did not [m]ove for a Rule 29 Judgment of Acquittal on Count 4, he did so on Count 1." Opening Br. at 18. We disagree.
A "waiver is the intentional relinquishment or abandonment of a known right." Wood v. Milyard, 566 U.S. 463, 474 (2012) (internal quotation marks omitted). In his Rule 29 Motion, Archible did not raise the argument that he now raises on appeal. Rather, Archible raised a Rule 29 motion as to Count One alleging that there was insufficient evidence that Archible was the one who killed Mr. Dudley, and that the drug conspiracy had ended by the time that Mr. Dudley was killed. Accordingly, Archible argued that Count Four "could not be used as a predicate for the Use of a Firearm Resulting in Death." J.A. 924. Moreover, Archible argued that "[he] is a drug dealer who sells heroin and not crack [and] [t]he evidence shows that [Jones] introduced Dudley to [him] for the purpose of conducting a single, discreet crack transaction." J.A. 926. Thus, as to Count One, Archible argued that Mr. Dudley was not killed during the commission of Count Four because by the time Archible arrived at Mr. Dudley's house to retrieve the Percocet, the "sole goal of the conspiracy [was] over." J.A. 927.
On appeal, Archible concedes that his trial counsel did not specifically raise a sufficiency of the evidence challenge for his Count 4 conviction for drug conspiracy. Opening Br. at 17-18. Rather, Archible argues that because his Rule 29 motion alleged
that the government did not prove that he committed a drug trafficking crime (as charged in Count Four) as a requisite element for Count One, that this was sufficient to place the district court on notice that he was also challenging the sufficiency of the...
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