United States v. Corey Stukes

• Court: Court of Appeals for the Fourth Circuit
• Decided: May 29, 2019
• Docket: 18-4434
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 18-4434

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

COREY JASON STUKES,

Defendant - Appellant.

Appeal from the United States District Court for the District of South Carolina, at Columbia. Terry L. Wooten, Senior District Judge. (3:17-cr-00030-TLW-9)

Submitted: April 30, 2019 Decided: May 29, 2019

Before GREGORY, Chief Judge, KEENAN, Circuit Judge, and HAMILTON, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Jonathan M. Milling, MILLING LAW FIRM, LLC, Columbia, South Carolina, for Appellant. Sherri A. Lydon, United States Attorney, Benjamin N. Garner, Assistant United States Attorney, Kathleen M. Stoughton, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Corey Jason Stukes pleaded guilty to conspiracy to possess with intent to

distribute and to distribute 500 grams or more of cocaine and 28 grams or more of

cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), 846 (2012). The district

court sentenced Stukes to 100 months’ imprisonment and 4 years’ supervised release. On

appeal, Stukes asserts that the district court erred in applying two two-level

enhancements, one for possession of a dangerous weapon and the other for maintaining a

drug premises, and in relying on hearsay testimony to determine the applicability of the

enhancements. We affirm.

At the sentencing hearing, the district court heard testimony from Federal Bureau

of Investigation Special Agent Kevin Conroy relating information obtained from three

informants concerning Stukes’ activities. One informant said that Stukes always carried

a gun; another stated that he hung out with Stukes at a “trap house” in south Sumter,

South Carolina, “run by Stukes,” who had a constant stream of customers to purchase

drugs there; and the third informant reported that Stukes had a gun in his waistband each

time he purchased drugs from Stukes at a house in south Sumter. The Government

offered no evidence that Stukes had a legal possessory interest in the trap house or that

Stukes resided there.

We begin by addressing Stukes’ argument that the district court procedurally erred

in relying exclusively on Conroy’s hearsay testimony, which Stukes claims was

uncorroborated. We review a criminal sentence for reasonableness “under a deferential

abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 41 (2007). We must

2 “ensure that the district court committed no significant procedural error, such as failing to

calculate (or improperly calculating) the [Sentencing] Guidelines range, . . . selecting a

sentence based on clearly erroneous facts, or failing to adequately explain the chosen

sentence.” Id. at 51.

A district court “may consider any relevant information before it, including

uncorroborated hearsay, provided that the information has sufficient indicia of reliability

to support its accuracy.” United States v. Mondragon, 860 F.3d 227, 233 (4th Cir. 2017)

(internal quotation marks omitted); see U.S. Sentencing Guidelines Manual § 6A1.3(a)

(2016). The defendant bears “an affirmative duty to show that the information in the

presentence report is unreliable, and articulate the reasons why the facts contained therein

are untrue or inaccurate.” Mondragon, 860 F.3d at 233 (internal quotation marks

omitted).

Stukes claims that the information supplied by the informants was uncorroborated

and therefore unreliable. First, hearsay is admissible at sentencing, and the fact that it is

uncorroborated does not, by itself, render it unreliable. Rather, a defendant must show

that the disputed information is unreliable, and why. United States v. Terry, 916 F.2d

157, 162-63 (4th Cir. 1990). Second, the informants’ claims actually were corroborated.

As to the firearm enhancement, two informants stated that Stukes possessed a firearm

during drug sales; one reported that Stukes always carried a gun, and the other recounted

that Stukes had a gun in his waistband each time the informant purchased drugs from

Stukes. Similarly, two informants stated that Stukes sold drugs from a house in south

Sumter, South Carolina. And third, Conroy testified that two of the informants had

3 proven extremely reliable by providing a significant amount of information that was

corroborated through further investigation and led to arrests and indictments of additional

coconspirators. Thus, we conclude that Conroy’s hearsay testimony bore sufficient

indicia of reliability to permit the district court to rely on it in determining the

applicability of the disputed sentencing enhancements.

In reviewing application of these enhancements, we review the district court’s

legal conclusions de novo and its factual conclusions for clear error. United States v.

Shephard, 892 F.3d 666, 670 (4th Cir. 2018). The Guidelines enumerate several specific

enhancements for drug trafficking offenses. United States v. Bolton, 858 F.3d 905, 912

(4th Cir. 2017). Here, the district court applied two such enhancements. First, the court

added two offense levels under USSG § 2D1.1(b)(1), which reads: “If a dangerous

weapon (including a firearm) was possessed, increase by 2 levels.” The Guidelines’

commentary states in part, “The enhancement should be applied if the weapon was

present, unless it is clearly improbable that the weapon was connected with the offense.”

USSG § 2D1.1 cmt. n.11(A). Noting the reliability of Agent Conroy’s testimony, we

conclude that the district court did not clearly err in determining, by a preponderance of

the evidence, that Stukes possessed a firearm during at least some of his drug

transactions.

The district court also applied USSG § 2D1.1(b)(12), which reads: “If the

defendant maintained a premises for the purpose of manufacturing or distributing a

controlled substance, increase by 2 levels.” The Guidelines’ commentary states: “Among

the factors the court should consider . . . are (A) whether the defendant held a possessory

4 interest in (e.g., owned or rented) the premises and (B) the extent to which the defendant

controlled access to, or activities at, the premises.” USSG § 2D1.1 cmt. n.17.

Again, in light of the reliability of the informants’ information as relayed by

Conroy’s testimony, we conclude that the district court did not clearly err in determining,

by a preponderance of the evidence, that Stukes maintained a house for the purpose of

selling drugs. While other indicia of control are absent, such as a documented possessory

interest in the house, Conroy’s testimony that Stukes ran a trap house provided sufficient

evidence that Stukes exercised at least some power to control it.

Accordingly, we affirm the judgment of the district court. We dispense with oral

argument because the facts and legal contentions are adequately presented in the

materials before this court and argument would not aid the decisional process.

AFFIRMED