United States v. Billy G. Reed, 54 F.3d 775, 4th Cir. (1995)
United States v. Billy G. Reed, 54 F.3d 775, 4th Cir. (1995)
3d 775
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished
dispositions is disfavored except for establishing res judicata, estoppel, or the law
of the case and requires service of copies of cited unpublished dispositions of the
Fourth Circuit.
Billy G. Reed appeals his conviction and sentence for possession of cocaine
base with intent to distribute in violation of 21 U.S.C.A. Sec. 841(a)(1), (b)(1)
(B) (West 1981 & Supp.1994). On appeal, Reed's attorney filed a brief in
accordance with Anders v. California, 386 U.S. 738 (1967), noting two issues
but stating in his view there are no meritorious issues for appeal. Reed has filed
a pro se supplemental brief. After a thorough review of the briefs and the record
we affirm.
United States Marshals arrested Reed at a restaurant. While Reed was being
escorted out of the restaurant, two restaurant patrons noticed him dropping a
plastic aspirin bottle on the floor. The patrons retrieved the bottle and turned it
over to the police. The police examined the contents of the bottle and
discovered 13.5 grams of cocaine base. The police delivered the bottle to the
United States Marshals.
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Reed was charged with possession of cocaine base with intent to distribute in
violation of 21 U.S.C.A. Sec. 841(a)(1), (b)(1)(B). Because Reed had
previously been convicted of possession of cocaine base with intent to
distribute, the Government filed an information seeking enhanced penalties,
asserting that Reed was subject to a ten year mandatory minimum sentence
under 21 U.S.C.A. Sec. 841(b)(1)(B). During the trial, one of the Marshals
referred to Reed as a fugitive. The defense objected and moved for a mistrial.
The district court denied the motion and admonished the jury to disregard the
remark.
The district court did not give an instruction on the lesser-included offense of
simple possession. Further, in definingg "distribute," the court said the term
"means to deliver a controlled substance to the possession of another person,
which in turn means the actual, constructive, or attempted transfer of a
controlled substance." Reed did not object to this jury instruction, nor did he
propose that the court instruct the jury on the lesser-included offense of simple
possession.
The jury found Reed guilty of possession of cocaine base with intent to
distribute. Because Reed had previously been convicted of a drug-related
felony, the district court sentenced him to the ten year mandatory minimum
under 21 U.S.C.A. Sec. 841(b)(1)(B). Reed did not object to the district court's
sentence calculations, he did not argue that the court incorrectly applied the
guidelines, and he did not object to court's imposition of the ten year minimum
sentence.
In his Anders brief, Reed's attorney mentioned, as a possible ground for appeal,
the district court's refusal to grant a mistrial when the United States Marshal
referred to Reed as a fugitive. This Court reviews the denial of a motion for
mistrial for abuse of discretion. United States v. Alonzo, 689 F.2d 1202, 1204
(4th Cir.1982). In United States v. Moore, 710 F.2d 157 (4th Cir.), cert. denied,
464 U.S. 862 (1983), this Court addressed a situation directly on point. In that
case, an FBI agent referred to the defendant as a fugitive. Id. at 159. The
district court denied defense counsel's motion for a mistrial and instructed the
jury to disregard the remark. Id. On appeal, this Court held that "absent other
indications of prejudice or evidence of intentional prosecutorial misconduct,"
the district court's instruction was sufficient to cure any unfairness. Id. at 159.
In Reed's trial there were no indications of prejudice or prosecutorial
misconduct. The district court, therefore, did not abuse its discretion in refusing
to grant the motion for a mistrial.
8
Reed's attorney also suggests that the district court may have erred in imposing
the ten year mandatory minimum provided by 21 U.S.C.A. Sec. 841(b)(1)(B).
Under that statute, if a person is convicted of possessing five or more grams of
cocaine base with intent to distribute and that person was previously convicted
of a drug-related felony, then "such a person shall be sentenced to a term of
imprisonment which may not be less than 10 years." 21 U.S.C.A. Sec. 841(b)
(1)(B). The prior conviction must have arisen from separate, rather than related,
offense conduct. United States v. Blackwood, 913 F.2d 139, 147 (4th
Cir.1990). Reed was convicted in August 1992 of possession of cocaine base
with intent to distribute. There was nothing in the record which indicated, and
Reed did not claim, that this previous conviction was somehow related to the
present offense. Thus, the district court properly imposed the ten year
mandatory minimum sentence provided by 21 U.S.C.A. Sec. 841(b)(1)(B).
10
Reed also contends that the district court erred in failing to instruct the jury on
the lesser-included offense of simple possession and that the court lessened the
Government's burden of proof when it used the word "transfer" to define
distribution. At trial, Reed did not object to the district court's definition of
distribution, and he did not propose that the court instruct the jury on the
offense of simple possession. The issue of allegedly erroneous jury instructions
may not be raised on appeal when the defendant did not object or propose an
alternative instruction at trial, United States v. Bryant, 612 F.2d 799, 803 (4th
Cir.1979), cert. denied, 446 U.S. 919 (1980), unless the judge's failure to
properly instruct was clear error. United States v. Venneri, 736 F.2d 995, 996
(4th Cir.), cert. denied, 469 U.S. 1035 (1984). There is nothing in the record to
indicate that the district court's jury instruction amounted to clear error. Thus,
this issue may not be raised on appeal.
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We have examined the entire record in this case in accordance with the
requirements of Anders, and find no meritorious issues for appeal. The Court
requires that counsel inform his client, in writing, of his right to petition the
Supreme Court of the United States for further review. If the client requests
that a petition be filed, but counsel believes that such a petition would be
frivolous, then counsel may move in this Court for leave to withdraw from
representation. Counsel's motion must state that a copy thereof was served on
the client.
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