United States v. Michael Stevenson, 4th Cir. (2011)

ON REHEARING
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4327
UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v.
MICHAEL CARL STEVENSON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
Terrence W. Boyle,
District Judge. (7:08-cr-00057-BO-3)
Submitted:
October 25, 2011
Decided:
December 9, 2011
Before DAVIS, WYNN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Robert L. Cooper, COOPER, DAVIS & COOPER, Fayetteville, North

Carolina, for Appellant.
George E. B. Holding, United States
Attorney, Jennifer P. May-Parker, Denise Walker, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
After
jury
trial,
Michael
Carl
Stevenson
was
convicted of one count of conspiracy to possess with intent to

distribute 500 grams or more of cocaine, in violation of 21
U.S.C. 841(a)(1), 846 (2006).
On appeal, Stevensons counsel
filed a brief claiming the evidence was insufficient to support

the conviction.
No.
10-4327,
We affirmed.
2011
(unpublished).
WL
See United States v. Stevenson,
2837402
(4th
Cir.
July
19,
2011)
We subsequently stayed the mandate pursuant to
Fed. R. App. P. 41(d)(1) and granted Stevensons pro se petition

for
rehearing,
motion
for
reinstated
leave
to
file
and
a
granted
pro
se
his
November
supplemental
2,
2010
brief
and
directed the Government to file a brief addressing Stevensons

pro se claim that the district court abused its discretion by
ordering a sentence at the top end of the Sentencing Guidelines,
without
indicating
it
considered
counsels
arguments
for
sentence at the low end of the Guidelines or any of the 18

U.S.C.
States v.
3553(a)
Lynn,
(2006)
592
F.3d
sentencing
572
(4th
factors,
Cir.
citing
2010),
States v. Carter, 564 F.3d 325 (4th Cir. 2009).
and
United
United
After receiving
the Governments brief and conducting further review, we affirm

the conviction and sentence.
This court reviews de novo the denial of Stevensons
motion for judgment of acquittal.
2
See United States v. Green,
599 F.3d 360, 367 (4th Cir.), cert. denied, 131 S. Ct. 271
(2010). [V]iewing the evidence in the light most favorable to
the Government, United States v. Bynum, 604 F.3d 161, 166 (4th
Cir.) (internal quotation marks omitted), cert. denied, 130 S.
Ct.
3442
(2010),
conviction
is
the
court
supported
is
by
to
determine
substantial
whether
evidence,
the
where
substantial evidence is evidence that a reasonable finder of

fact
could
accept
as
adequate
and
sufficient
to
support
conclusion of a defendants guilt beyond a reasonable doubt,

United
States
v.
Young,
609
F.3d
348,
(internal quotation marks omitted).

whether
any
rational
trier
of
355
(4th
Cir.
2010)
The ultimate question is
facts
could
defendant guilty beyond a reasonable doubt.
have
found
the
Bynum, 604 F.3d at
166 (internal quotation marks omitted).

Conviction
for
conspiracy
to
distribute
narcotics
under 21 U.S.C. 846 requires proof beyond a reasonable doubt

of
three
elements:
(1)
an
agreement
between
two
or
more
persons to engage in conduct that violates a federal drug law,

(2) the defendants knowledge of the conspiracy, and (3) the
defendants
knowing
and
voluntary
participation
in
the
conspiracy.
United States v. Kellam, 568 F.3d 125, 139 (4th
Cir.),
denied,
cert.
130
S.
Ct.
657
(2009).
Because
conspiracy is by nature clandestine and covert, there rarely is

direct
evidence
of
such
an
agreement
3
[C]onspiracy
is
usually proven by circumstantial evidence.
United States v.
Yearwood, 518 F.3d 220, 226 (4th Cir. 2008) (internal quotation
marks and citation omitted).
may
consist
of
the
Evidence supporting an agreement
defendants
relationship
to
the
other
conspirators and his conduct and attitude during the course of

the conspiracy.
United States v. Burgos, 94 F.3d 849, 858 (4th
Cir. 1996) (en banc).

We conclude that the evidence was sufficient to show
that
Stevenson
Patterson.
entered
into
conspiracy
with
Beatty
and
Stevenson knew Beatty had a history of dealing drugs
and had allowed him to store drugs on his property.
On the day
of the transaction, Stevenson provided Beatty with drug testing

kits, drove him and Patterson to the location of the drug deal,
kept his plans private from other individuals, discussed with
the other two men that they needed to be on the same page if
anything went wrong and agreed to accept payment of $1000 for
driving.
We conclude that this evidence of Stevensons conduct
and attitude shows that he was in agreement with the other men
to purchase narcotics for the purpose of distribution.
We have reviewed the issues Stevenson presented in his
pro se supplemental brief and conclude that none of the issues
compel us to vacate his conviction or sentence.
With regard to
Stevensons sentencing issues, we have reviewed the record and

conclude that the district court did not abuse its discretion.
4
See
Gall
v.
United
States,
552
U.S.
reviews
first
38,
51
(2007)
(stating
standard of review).
The
court
the
reasonableness
of
the
process by which the sentencing court arrived at its decision

and then reviews the reasonableness of the sentence itself.
Id.
In determining the procedural reasonableness of a sentence, this

court considers whether the district court properly calculated
the
Guidelines
considered
range,
presented
the
by
treated
3553(a)
the
Guidelines
factors,
parties,
selected sentence.
the
and
analyzed
sufficiently
as
advisory,
any
arguments
explained
the
Regardless of whether the district
Id.
court imposes an above, below, or within-Guidelines sentence, it

must place on the record an individualized assessment based on
the particular facts of the case before it.
United States v.
Carter, 564 F.3d 325, 330 (4th Cir. 2009) (internal quotation
marks omitted).
Where, as here, the district court imposed a
within-Guidelines
sentence,
extensive,
still
while
the
explanation
individualized.
may
United
be
less
States
v.
Johnson, 587 F.3d 625, 639 (4th Cir. 2009), cert. denied, 130 S.
Ct.
2128
themselves
(2010).
are
in
This
many
is
ways
because
tailored
guidelines
to
the
sentences
individual
and
reflect approximately two decades of close attention to federal

sentencing policy.
However,
that
Id.
explanation
(internal quotation marks omitted).

must
5
be
sufficient
to
allow
for
meaningful
appellate
review,
Carter,
564
F.3d
at
330
(quoting Gall, 552 U.S. at 50), such that the appellate court
need not guess at the district courts rationale.
Id. at 329.
A courts reasoning for imposing a within-Guidelines sentence

may
be
clear
throughout
from
the
anything
sentencing
the
court
hearing.
said
See
to
the
United
defendant
States
v.
Thompson, 595 F.3d 544, 547 (4th Cir. 2010).

In order to preserve a sentencing issue for appellate
review, the defendant must, at some point in the proceedings
draw arguments from 3553 for a sentence different than the one
ultimately imposed[.]
United States v. Lynn, 592 F.3d 576, 578
(4th Cir. 2010); see also United States v. Boulware, 604 F.3d
832, 838 (4th Cir. 2010) (arguments under 18 U.S.C. 3553(a)
for a sentence different than the one imposed are sufficient to
preserve a claim).
Under 18 U.S.C. 3553(a), the district court should
consider the nature and circumstances of the offense and the
history and characteristics of the defendant, the need for the
sentence to reflect the seriousness of the offense, to promote
respect for the law, to provide just punishment for the offense,
to provide adequate deterrence, to protect the public and to
provide the defendant with educational and vocational training.
Stevensons counsel requested a sentence at the low
end of the Guidelines, asserting that such a sentence would be
6
sufficient deterrence and would serve to protect the public.

Because counsels request for a low sentence was not supported
with
anything
recitation
from
the
two
of
of
record
the
and
was
3553(a)
nothing
more
sentencing
than
factors,
a
we
conclude that the court was not obliged to directly respond to

counsels request.
We note, in contrast, that the Government
provided
basis
factual
in
support
of
its
request
for
sentence at the high end of the Guidelines.

We conclude that the district court properly place[d]
on
the
record
an
individualized
assessment
based
on
the
particular facts of the case before it, Carter, 564 F.3d at

330,
and
adequately
stated
its
reasoning
Stevenson to the high end of the Guidelines.
for
sentencing
The sentencing
transcript demonstrates that the court, having presided over the

trial,
based
the
characteristics.
sentence
on
Stevensons
history
and
For example, the court stated the Guideline
range and then heard arguments from defense counsel and from the
Government.
During
The
colloquy
court
with
also
permitted
Stevenson,
the
Stevenson
court
to
speak.
stated
the
following: I think that youve had a life of manipulation and

deceit and that you have been able to survive through those
methodologies and that, unfortunately for you, the time has come
where the lies and deceit have run out.
Even if the district court failed to give adequate

consideration to counsels request for a sentence at the low end
of the Guidelines or to the 3553(a) sentencing factors, we
conclude that any error was harmless.
There is nothing in the
record to suggest that the courts approach to determining the

sentence had an improper substantial and injurious effect or
influence on the proceedings.
Accordingly,
sentence.
legal
before
affirm
Stevensons
conviction
and
We dispense with oral argument because the facts and
contentions
the
we
See Lynn, 592 F.3d at 585.
court
are
adequately
and
argument
presented
would
not
in
aid
the
the
materials
decisional
process.
AFFIRMED

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ON REHEARING

UNITED STATES OF AMERICA,

October 25, 2011

Before DAVIS, WYNN, and DIAZ, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Robert L. Cooper, COOPER, DAVIS & COOPER, Fayetteville, North

Unpublished opinions are not binding precedent in this circuit.

convicted of one count of conspiracy to possess with intent to

On appeal, Stevensons counsel

filed a brief claiming the evidence was insufficient to support

See United States v. Stevenson,

We subsequently stayed the mandate pursuant to

Fed. R. App. P. 41(d)(1) and granted Stevensons pro se petition

directed the Government to file a brief addressing Stevensons

sentence at the low end of the Guidelines or any of the 18

States v. Carter, 564 F.3d 325 (4th Cir. 2009).

the Governments brief and conducting further review, we affirm

See United States v. Green,

substantial evidence is evidence that a reasonable finder of

conclusion of a defendants guilt beyond a reasonable doubt,

(internal quotation marks omitted).

The ultimate question is

defendant guilty beyond a reasonable doubt.

Bynum, 604 F.3d at

166 (internal quotation marks omitted).

under 21 U.S.C. 846 requires proof beyond a reasonable doubt

persons to engage in conduct that violates a federal drug law,

United States v. Kellam, 568 F.3d 125, 139 (4th

conspiracy is by nature clandestine and covert, there rarely is

usually proven by circumstantial evidence.

Evidence supporting an agreement

conspirators and his conduct and attitude during the course of

United States v. Burgos, 94 F.3d 849, 858 (4th

Cir. 1996) (en banc).

Stevenson knew Beatty had a history of dealing drugs

and had allowed him to store drugs on his property.

of the transaction, Stevenson provided Beatty with drug testing

We conclude that this evidence of Stevensons conduct

Stevensons sentencing issues, we have reviewed the record and

process by which the sentencing court arrived at its decision

In determining the procedural reasonableness of a sentence, this

Regardless of whether the district

court imposes an above, below, or within-Guidelines sentence, it

Where, as here, the district court imposed a

reflect approximately two decades of close attention to federal

(internal quotation marks omitted).

A courts reasoning for imposing a within-Guidelines sentence

Thompson, 595 F.3d 544, 547 (4th Cir. 2010).

United States v. Lynn, 592 F.3d 576, 578

sufficient deterrence and would serve to protect the public.

conclude that the court was not obliged to directly respond to

We note, in contrast, that the Government

sentence at the high end of the Guidelines.

particular facts of the case before it, Carter, 564 F.3d at

Stevenson to the high end of the Guidelines.

transcript demonstrates that the court, having presided over the

For example, the court stated the Guideline

following: I think that youve had a life of manipulation and

Even if the district court failed to give adequate

There is nothing in the