United States v. Curtis Watson

• Court: Court of Appeals for the Fourth Circuit
• Decided: June 21, 2023
• Docket: 21-4120
• Status: Unpublished

Opinion

USCA4 Appeal: 21-4120 Doc: 49 Filed: 06/21/2023 Pg: 1 of 11

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 21-4120

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

CURTIS WATSON, a/k/a LOW,

Defendant - Appellant.

Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. Irene C. Berger, District Judge. (2:18-cr-00279-1)

Submitted: October 17, 2022 Decided: June 21, 2023

Before HARRIS, RICHARDSON, and RUSHING, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ON BRIEF: L. Thompson Price, TOM PRICE LAW, Charleston, West Virginia; Shawn A. Morgan, STEPTOE & JOHNSON PLLC, Bridgeport, West Virginia, for Appellant. Lisa G. Johnston, Acting United States Attorney, Nowles H. Heinrich, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 21-4120 Doc: 49 Filed: 06/21/2023 Pg: 2 of 11

PER CURIAM:

A jury convicted Curtis Watson of conspiracy to distribute heroin, possession of

firearms in furtherance of a drug trafficking crime, and witness tampering. The district

court sentenced Watson to 295 months’ imprisonment, consistent with his advisory

Sentencing Guidelines range. On appeal, Watson challenges both his conviction and his

sentence. For the reasons given below, we affirm.

I.

Curtis Watson, known as “Low,” led a large-scale drug trafficking operation in

Hernshaw, West Virginia. Watson provided heroin and prescription pills to multiple

associates and then supervised their distribution of the drugs. During a roughly six-month

period in 2017, the trial testimony established, the home of one of Watson’s associates

became a virtual “fast food restaurant” for drug sales, J.A. 29, with drugs sold for ten to

twelve hours a day. Watson’s operation brought in thousands of dollars each day, and at

sentencing, Watson was found responsible for 1,650 grams of heroin, 1,000 oxycodone

pills, and 14 grams of fentanyl.

The charged conspiracy ended on November 17, 2017, after a man purchased and

used drugs at the home in question and soon died from a drug overdose. Police searched

the premises and found baggies of heroin, pills, and fentanyl, along with a loaded 9-

millimeter handgun. Watson was not at the house, but the police arrested two of his

associates, who testified that Watson supplied them with the drugs and the gun.

2 USCA4 Appeal: 21-4120 Doc: 49 Filed: 06/21/2023 Pg: 3 of 11

Watson initially was indicted for conspiring to distribute heroin and distributing

heroin. But while awaiting trial, Watson confronted and yelled at a potential prosecution

witness at the courthouse, placing the witness in fear. A superseding indictment then

charged Watson with conspiracy to distribute heroin, see 21 U.S.C. § 846; use and carry of

a firearm during and in relation to a drug trafficking crime, see 18 U.S.C. § 924(c)(1)(A);

and tampering with a witness, see 18 U.S.C. § 112(b)(1).

At trial, fifteen witnesses testified for the government, including seven who had

worked with Watson or purchased drugs from him during the period of the charged

conspiracy. The witnesses testified that a man named “Low” ran the drug trafficking

operation at the Hernshaw residence, and all identified Watson as “Low.” Watson testified

on his own behalf, denying that he was “Low” and raising what was in effect a mistaken-

identity defense. The jury rejected that defense and convicted Watson on all counts.

At sentencing, the district court adopted an advisory Sentencing Guidelines range

of 235 to 293 months’ imprisonment on the drug and witness-tampering charges, followed

by a mandatory 60-month consecutive sentence for the firearm offense. The court rejected

the government’s request for an upward departure based on the overdose death on

November 17, 2017, finding that the relevant offense level already took into account the

risk of injury to others. The court also rejected the defendant’s request for a downward

variance. Ultimately, the court sentenced Watson to a cumulative sentence of 295 months’

imprisonment: a bottom-of-the-Guidelines 235 months for the drug and witness-tampering

counts, with a required 60-month consecutive sentence on the firearm offense.

3 USCA4 Appeal: 21-4120 Doc: 49 Filed: 06/21/2023 Pg: 4 of 11

II.

On appeal, Watson challenges his convictions on multiple grounds. Having

reviewed the record and finding no reversible error, we affirm Watson’s convictions.

A.

Watson raises four alleged errors and constitutional violations associated with his

trial, each of which, he contends, entitles him to a new trial on all counts against him. For

the reasons given below, we find no merit to those arguments and no ground for a new

trial.

First, Watson raises what appears to be an evidentiary contention, arguing that the

government improperly displayed for the jury a three-page exhibit – Exhibit 16D – that

transcribed text messages between Watson and an associate and included on one page a

reference to an “OD,” or overdose. According to Watson, that reference could have unduly

prejudiced the jury and influenced its verdict, requiring that we set aside his convictions.

Because Watson did not object to the display of Exhibit 16D or request a limiting

instruction, we review his claim for plain error only. See United States v. Olano, 507 U.S.

725, 732–34 (1993) (setting out standard for plain-error review). It is not clear there was

any error here, plain or otherwise, as the record does not conclusively show that the page

of Exhibit 16D containing the “OD” reference actually was displayed at trial. And if it was

displayed, it would have been only briefly, as the entire exhibit was “quickly” removed

from the screen on which it had appeared. J.A. 131. Under the circumstances, there is no

reason to think any hypothetical error could have “affected the outcome” of Watson’s trial,

as would be required for reversal on plain-error review. Olano, 507 U.S. at 734. Given

4 USCA4 Appeal: 21-4120 Doc: 49 Filed: 06/21/2023 Pg: 5 of 11

the overwhelming evidence of dangerous drug trafficking in this case, a momentary

showing of the term “OD” – without any indication of a fatality – could not have

appreciably affected the jury’s thinking.

Second, Watson claims that he is entitled to a new trial because the jury was not

provided with a special verdict form requiring a finding that his drug charge involved the

distribution of 100 grams or more of heroin. That drug quantity, Watson argues, is an

element necessary for conviction because it increased the range of statutory penalties to

which he was exposed, see Alleyne v. United States, 570 U.S. 99, 103 (2013), and so he

was entitled to a specific jury finding on the issue.

As Watson concedes, because he did not seek a special verdict form or object to its

absence at trial, our review is for plain error only. We find no such error here. In this case

– unlike Alleyne – the relevant drug weight was treated as an element of Watson’s drug

offense, with the jury instructed that to convict, it would have to find beyond a reasonable

doubt that the “object of the conspiracy involved distribution of 100 grams or more of

heroin.” J.A. 212. The government reiterated the point in its summation, explaining that

“one of the elements we have to prove is that there was 100 or more grams of heroin

distributed as part of this conspiracy.” J.A. 225. And the defendant has cited no authority

for the proposition that the verdict of a jury properly instructed on the drug-weight element

of a crime is insufficient under Alleyne if not accompanied by a special verdict form.

Moreover, Watson cannot establish the prejudice required to set aside a conviction

under the plain-error standard of review. Consistent trial testimony in this case described

a large-scale drug-distribution operation, with drug quantities far exceeding the 100-gram

5 USCA4 Appeal: 21-4120 Doc: 49 Filed: 06/21/2023 Pg: 6 of 11

benchmark at issue. One witness, for instance, testified that 200 to 250 grams of heroin

were sold in November 2017 alone. And Watson never disputed this at trial; as noted

above, his defense turned not on the quantity of drugs involved, but on his claim that he

had been misidentified as the “Low” who ran the drug trafficking operation. Because any

error regarding the 100-gram drug quantity could not have “affected [Watson’s] substantial

rights,” see Olano, 507 U.S. at 732–34, he cannot prevail on this claim. See United States

v. Promise, 255 F.3d 150, 161 (4th Cir. 2001) (declining to correct error on plain-error

review because of “overwhelming and essentially uncontroverted evidence” that defendant

was a major participant in conspiracy to distribute drugs).

Next, Watson argues that the government’s closing argument constituted

prosecutorial misconduct that violated his due process rights and requires reversal.

Specifically, Watson objects to the government saying, at one point in its closing, that

Watson “took advantage of a drug crisis in [West Virginia]” and that his “sole purpose in

coming to West Virginia was to develop a drug trafficking network.” J.A. 221. Watson

argues that by virtue of this language, the government improperly appealed to the jury as a

community to “make a general statement” against narcotics crimes. Appellant’s Suppl.

Opening Br. at 25.

Again, because Watson failed to object to this comment before the district court,

our review is for plain error only. In determining whether a defendant’s due process rights

were violated by a prosecutor’s closing argument, we ask whether the proceeding at issue

was rendered “fundamentally unfair” by improper argument, considering such factors as

“the nature of the comments,” whether they were “isolated or repeated,” and the “quantum

6 USCA4 Appeal: 21-4120 Doc: 49 Filed: 06/21/2023 Pg: 7 of 11

of the evidence before the jury.” Boyd v. French, 147 F.3d 319, 329 (4th Cir. 1998). The

comments here, we note, are unlike those at issue in United States v. Pupo, 841 F.2d 1235,

1240 (4th Cir. 1988), on which Watson relies, and in which the prosecutor expressly urged

the jury to “make [a] statement” to “address these types of conspiracies that are taking

place in [the] community.” There is no similar invitation to this jury to make a statement

or send a message, and as the government argues, its language could be read as nothing

more than a fair comment on the evidence. Moreover, the commentary at issue was

isolated, occurring only once in the government’s closing, in a case in which the evidence

against the defendant was overwhelming. See Boyd, 147 F.3d at 329. Under the

circumstances, it cannot be said that the government’s statement affected Watson’s

substantial rights by depriving him of a fundamentally fair trial. See Pupo, 841 F.2d at

1240 (holding that improper “make a statement” remarks did not rise to level of due process

violation because they were isolated and the evidence of guilt, though not overwhelming,

was adequate).

Finally, Watson claims that he was provided ineffective assistance of counsel at

trial, in violation of his Sixth Amendment rights. See Strickland v. Washington, 466 U.S.

668 (1984). We decline to reach that claim. Ineffective assistance claims generally are not

addressed on direct appeal, and they may be resolved in that posture only if it “conclusively

appears from the record that counsel did not provide effective assistance.” United States

v. Galloway, 749 F.3d 238, 241 (4th Cir. 2014) (alteration omitted); see United States v

Benton, 523 F.3d 424, 435 (4th Cir. 2008). Watson cannot meet this “demanding”

7 USCA4 Appeal: 21-4120 Doc: 49 Filed: 06/21/2023 Pg: 8 of 11

standard. Galloway, 749 F.3d at 241. Accordingly, his claims should be raised, if at all,

in a motion under 28 U.S.C. § 2255, to permit sufficient development of the record.

B.

Watson also raises a separate challenge to his conviction on his firearm charge,

arguing that the district court improperly denied his motion for a judgment of acquittal on

that count. According to Watson, the government presented insufficient evidence to

establish he used the gun recovered at his accomplice’s home to further or advance his drug

trafficking crimes, as required to sustain a conviction under 18 U.S.C. § 924(c)(1)(A). See

United States v. Moore, 769 F.3d 264, 270 (4th Cir. 2014) (discussing required “nexus

between the firearms and the drugs”). We disagree.

While a challenge to the sufficiency of the evidence to support a conviction is

reviewed de novo, the defendant bears “a heavy burden.” See United States v. Wolf, 860

F.3d 175, 194 (4th Cir. 2017). We “construe the evidence in the light most favorable to

the government, assuming its credibility, and drawing all favorable inferences from it, and

will sustain the jury’s verdict if any rational trier of fact could have found the essential

elements of the crime charged beyond a reasonable doubt.” United States v. Penniegraft,

641 F.3d 566, 571 (4th Cir. 2011). And as we have noted, “[d]etermining whether an

adequate connection has been made between a firearm and an underlying drug offense is a

classic jury question.” United States v. Kimberlin, 18 F.3d 1156, 1158 (4th Cir. 1994).

Here, substantial trial evidence supports the jury’s verdict. Watson insists that there

is no evidence that the gun was used to further or advance his drug trafficking offenses; at

most, he argues, “the firearm and the drugs were possessed simultaneously.” Br. of

8 USCA4 Appeal: 21-4120 Doc: 49 Filed: 06/21/2023 Pg: 9 of 11

Appellant at 9. But “the fact finder is free to consider the numerous ways in which a

firearm might further or advance drug trafficking.” United States v. Lomax, 293 F.3d 701,

705 (4th Cir. 2002). And here, one of Watson’s associates testified to just such a use:

Watson provided him with the gun, he explained, to protect the drug operation at the

Hernshaw residence. See Moore, 769 F.3d at 270 (explaining that firearm may further or

advance drug trafficking crime by “defending the dealer’s drugs” or “drug profits”).

Viewed in the light most favorable to the government, the trial evidence is sufficient to

support Watson’s § 924(c) conviction, and the district court properly denied his motion for

a judgment of acquittal on that charge.

III.

Watson also challenges his sentence, arguing that his 235-month sentence on his

drug and witness-tampering charges is substantively unreasonable because it is an “outlier”

when compared to nationwide data on sentences for opioid-related crimes. Br. of Appellant

at 13. We cannot agree.

This court reviews the substantive reasonableness of a sentence under an abuse-of-

discretion standard, “tak[ing] into account the totality of the circumstances, including the

extent of any variance from the Guidelines range.” Gall v. United States, 552 U.S. 38, 51

(2007). Here, critically, there is no variance: Watson’s sentence is within – and at the

lowest end – of the advisory Guidelines range. For that reason, it is “presumptively

reasonable.” United States v. Louthian, 756 F.3d 295, 306 (4th Cir. 2014). That

presumption can only be rebutted by showing that the sentence is unreasonable when

9 USCA4 Appeal: 21-4120 Doc: 49 Filed: 06/21/2023 Pg: 10 of 11

measured against the 18 U.S.C. § 3553(a) factors. Id. And “district courts have extremely

broad discretion when determining the weight to be given [to] each of the 18 U.S.C.

§ 3553(a) factors.” United States v. Jeffery, 631 F.3d 669, 679 (4th Cir. 2011).

Here, prior to imposing its within-Guidelines sentence, the district court properly

calculated the Sentencing Guidelines and considered the § 3553(a) factors as well as the

arguments of the government and the defendant. * When analyzing the § 3553(a) factors,

the court noted the substantial quantity of drugs involved; Watson’s exploitation of the

drug addiction of one of his associates; Watson’s various obstructive acts, including

threatening a witness and committing perjury at trial; his supervisory role in the trafficking

operation; his possession of firearms; his criminal record and particular risk of recidivism;

and other relevant facts. Nothing about the district court’s consideration of these factors

leads us to believe that its within-Guidelines sentence was an abuse of discretion and

substantively unreasonable.

Indeed, Watson’s argument focuses not on his individual offenses, characteristics,

and circumstances, but on nationwide sentencing data that purportedly shows a disparity

between his 235-month sentence and the “median” sentences imposed for allegedly similar

drug trafficking crimes. Watson describes this data at a high enough level of generality

that it is impossible to tell whether it controls for defendants with similar criminal histories

* Whenever we review a sentence, “we must first ensure that the district court committed no significant procedural error[.]” See United States v. Rivera-Santana, 668 F.3d 95, 100 (4th Cir. 2012). The defendant does not in any way dispute the procedural reasonableness of his sentence, and we agree that there is no procedural error here.

10 USCA4 Appeal: 21-4120 Doc: 49 Filed: 06/21/2023 Pg: 11 of 11

or equivalent aggravating factors. But in any event, as we have cautioned, “comparisons

of sentences may be treacherous because each sentencing proceeding is inescapably

individualized.” United States v. Rivera-Santana, 668 F.3d 95, 105 (4th Cir. 2012). Even

if it could be shown that Watson’s sentence is “more severe than average,” in other words,

that would “not mean that it was unwarranted.” Id. at 106. Given the constellation of

individualized factors appropriately considered by the district court, we find no abuse of

discretion in its imposition of a 235-month within-Guidelines sentence.

IV.

For the reasons given above, we affirm Watson’s convictions and sentence. We

dispense with oral argument because the facts and legal contentions are adequately

presented in the materials before the court and would not aid the decisional process.

AFFIRMED