UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 18-4429
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RANDOLPH HARRIS AUSTIN,
Defendant - Appellant.
Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Robert J. Conrad, Jr., District Judge. (3:16-cr-00277-RJC-DCK-1)
Submitted: March 27, 2019 Decided: April 3, 2019
Before WILKINSON, WYNN, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Aaron E. Michel, Charlotte, North Carolina, for Appellant. R. Andrew Murray, United States Attorney, Charlotte, North Carolina, Amy E. Ray, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. PER CURIAM:
Randolph Harris Austin appeals his convictions and 120-month sentence imposed
after a jury found him guilty of distribution and possession with intent to distribute
cocaine (Counts 1 and 2), as well as possession with intent to distribute cocaine base
(Count 3), each in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) (2012). On appeal,
Austin argues that the district court should have granted him a longer trial continuance so
that he could retain an expert witness. He also disputes the denial of his Fed. R. Crim. P.
29 motion for a judgment of acquittal on Count 3. Next, Austin contends that the court’s
jury instructions constructively amended the indictment as to Count 3. Finally, Austin
challenges the procedural and substantive reasonableness of his sentence. For the reasons
that follow, we affirm.
“We review . . . [a district court’s ruling on] a motion for a continuance for abuse
of discretion.” United States v. Copeland, 707 F.3d 522, 531 (4th Cir. 2013). “A district
court abuses its discretion when its . . . [decision] is an unreasoning and arbitrary
insistence upon expeditiousness in the face of a justifiable request for delay.” Id.
(internal quotation marks omitted).
Here, Austin moved for a continuance on the day before trial, seeking more time
to review evidence with counsel and indicating his desire to find a chemist who could
testify about the drug weight and a chain of custody issue. Noting the inconsistency
between Austin’s motion to continue and a previously filed speedy trial motion, as well
as the fact that a jury pool had already been assembled, the court granted the motion but
provided only a one-day continuance for counsel and Austin to confer. Based on our
2 review of these events, we discern no abuse of discretion in the district court’s handling
of Austin’s eve-of-trial motion for a continuance.
Central to Austin’s next two points—the sufficiency challenge and the jury
instruction claim—is his contention that a controlled substance’s identity is an element of
a § 841(a)(1) offense. However, we have previously held that “a defendant need not
know the exact nature of a drug in his possession to violate § 841(a)(1); it is sufficient
that he . . . be aware that he . . . possesses some controlled substance.” United States v.
Ali, 735 F.3d 176, 186 (4th Cir. 2013) (internal quotation marks omitted); see United
States v. Dowdell, 595 F.3d 50, 68 (1st Cir. 2010) (“Because [the defendant] was
prosecuted under § 841(a)(1), which prohibits distribution of any controlled substance
regardless of type, drug identity had no bearing on the substance of the charge.”).
Accordingly, we conclude that the particular identity of the controlled substance Austin
possessed was not integral to the charge in Count 3. See United States v. Tillman, __
F.3d __, __, No. 17-4648, 2019 WL 921534, at *7 (4th Cir. Feb. 26, 2019) (discussing
proof required for baseline § 841 offense).
Turning to the sufficiency challenge, “[w]e review de novo a district court’s denial
of a Rule 29 motion.” United States v. Burfoot, 899 F.3d 326, 334 (4th Cir. 2018). “We
must sustain a guilty verdict if, viewing the evidence in the light most favorable to the
prosecution, the verdict is supported by substantial evidence.” Id. “Substantial evidence
is that which a reasonable finder of fact could accept as adequate and sufficient to support
a conclusion of a defendant’s guilt beyond a reasonable doubt.” Id. (internal quotation
marks omitted).
3 “The essential elements of . . . a [§ 841(a)(1)] distribution offense are (1)
possession of the controlled substance; (2) knowledge of the possession; and (3) intent to
distribute.” United States v. Hall, 551 F.3d 257, 267 n.10 (4th Cir. 2009). At trial, the
Government produced evidence that, incident to Austin’s arrest, law enforcement
recovered from his vehicle a baggie of cocaine and a leaking plastic bag containing an
unknown substance. Austin told officers that the cocaine was for personal use and that
the substance in the plastic bag was the result of a failed attempt to convert cocaine into
cocaine base. However, subsequent forensic tests of the substance in the plastic bag
revealed that Austin had successfully produced 15.15 grams of cocaine base.
We conclude that the Government provided the jury with ample evidence to find
that Austin knowingly possessed an illicit substance—regardless of whether he thought
the substance was cocaine or cocaine base. And, in light of the Government’s evidence
establishing that Austin previously trafficked cocaine, ∗ as well as the absence of any
contemporaneous claim that the substance in the plastic bag, unlike the baggie of cocaine,
was for personal use, we reject Austin’s argument that the evidence was insufficient to
establish his intent to distribute. See United States v. Branch, 537 F.3d 328, 341-42 (4th
Cir. 2008) (finding that prior conviction for possession with intent to distribute cocaine
base was relevant to establish, in subsequent trial, defendant’s intent to distribute cocaine
base). Accordingly, we affirm the district court’s denial of Austin’s Rule 29 motion.
∗ In his opening statement, Austin admitted the conduct charged in Counts 1 and 2, and the Government corroborated this admission by presenting evidence that Austin sold cocaine to a confidential informant on two separate occasions before his arrest.
4 We review de novo whether the district court’s jury instructions constructively
amended the defendant’s indictment. United States v. Miltier, 882 F.3d 81, 92 (4th Cir.),
cert. denied, 139 S. Ct. 130 (2018). A constructive amendment—also called a fatal
variance—occurs when the jury instructions “broaden[] the bases for conviction beyond
those charged in the indictment” or “change the elements of the offense charged, such
that the defendant is actually convicted of a crime other than that charged in the
indictment.” Id.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 18-4429
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RANDOLPH HARRIS AUSTIN,
Defendant - Appellant.
Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Robert J. Conrad, Jr., District Judge. (3:16-cr-00277-RJC-DCK-1)
Submitted: March 27, 2019 Decided: April 3, 2019
Before WILKINSON, WYNN, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Aaron E. Michel, Charlotte, North Carolina, for Appellant. R. Andrew Murray, United States Attorney, Charlotte, North Carolina, Amy E. Ray, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. PER CURIAM:
Randolph Harris Austin appeals his convictions and 120-month sentence imposed
after a jury found him guilty of distribution and possession with intent to distribute
cocaine (Counts 1 and 2), as well as possession with intent to distribute cocaine base
(Count 3), each in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) (2012). On appeal,
Austin argues that the district court should have granted him a longer trial continuance so
that he could retain an expert witness. He also disputes the denial of his Fed. R. Crim. P.
29 motion for a judgment of acquittal on Count 3. Next, Austin contends that the court’s
jury instructions constructively amended the indictment as to Count 3. Finally, Austin
challenges the procedural and substantive reasonableness of his sentence. For the reasons
that follow, we affirm.
“We review . . . [a district court’s ruling on] a motion for a continuance for abuse
of discretion.” United States v. Copeland, 707 F.3d 522, 531 (4th Cir. 2013). “A district
court abuses its discretion when its . . . [decision] is an unreasoning and arbitrary
insistence upon expeditiousness in the face of a justifiable request for delay.” Id.
(internal quotation marks omitted).
Here, Austin moved for a continuance on the day before trial, seeking more time
to review evidence with counsel and indicating his desire to find a chemist who could
testify about the drug weight and a chain of custody issue. Noting the inconsistency
between Austin’s motion to continue and a previously filed speedy trial motion, as well
as the fact that a jury pool had already been assembled, the court granted the motion but
provided only a one-day continuance for counsel and Austin to confer. Based on our
2 review of these events, we discern no abuse of discretion in the district court’s handling
of Austin’s eve-of-trial motion for a continuance.
Central to Austin’s next two points—the sufficiency challenge and the jury
instruction claim—is his contention that a controlled substance’s identity is an element of
a § 841(a)(1) offense. However, we have previously held that “a defendant need not
know the exact nature of a drug in his possession to violate § 841(a)(1); it is sufficient
that he . . . be aware that he . . . possesses some controlled substance.” United States v.
Ali, 735 F.3d 176, 186 (4th Cir. 2013) (internal quotation marks omitted); see United
States v. Dowdell, 595 F.3d 50, 68 (1st Cir. 2010) (“Because [the defendant] was
prosecuted under § 841(a)(1), which prohibits distribution of any controlled substance
regardless of type, drug identity had no bearing on the substance of the charge.”).
Accordingly, we conclude that the particular identity of the controlled substance Austin
possessed was not integral to the charge in Count 3. See United States v. Tillman, __
F.3d __, __, No. 17-4648, 2019 WL 921534, at *7 (4th Cir. Feb. 26, 2019) (discussing
proof required for baseline § 841 offense).
Turning to the sufficiency challenge, “[w]e review de novo a district court’s denial
of a Rule 29 motion.” United States v. Burfoot, 899 F.3d 326, 334 (4th Cir. 2018). “We
must sustain a guilty verdict if, viewing the evidence in the light most favorable to the
prosecution, the verdict is supported by substantial evidence.” Id. “Substantial evidence
is that which a reasonable finder of fact could accept as adequate and sufficient to support
a conclusion of a defendant’s guilt beyond a reasonable doubt.” Id. (internal quotation
marks omitted).
3 “The essential elements of . . . a [§ 841(a)(1)] distribution offense are (1)
possession of the controlled substance; (2) knowledge of the possession; and (3) intent to
distribute.” United States v. Hall, 551 F.3d 257, 267 n.10 (4th Cir. 2009). At trial, the
Government produced evidence that, incident to Austin’s arrest, law enforcement
recovered from his vehicle a baggie of cocaine and a leaking plastic bag containing an
unknown substance. Austin told officers that the cocaine was for personal use and that
the substance in the plastic bag was the result of a failed attempt to convert cocaine into
cocaine base. However, subsequent forensic tests of the substance in the plastic bag
revealed that Austin had successfully produced 15.15 grams of cocaine base.
We conclude that the Government provided the jury with ample evidence to find
that Austin knowingly possessed an illicit substance—regardless of whether he thought
the substance was cocaine or cocaine base. And, in light of the Government’s evidence
establishing that Austin previously trafficked cocaine, ∗ as well as the absence of any
contemporaneous claim that the substance in the plastic bag, unlike the baggie of cocaine,
was for personal use, we reject Austin’s argument that the evidence was insufficient to
establish his intent to distribute. See United States v. Branch, 537 F.3d 328, 341-42 (4th
Cir. 2008) (finding that prior conviction for possession with intent to distribute cocaine
base was relevant to establish, in subsequent trial, defendant’s intent to distribute cocaine
base). Accordingly, we affirm the district court’s denial of Austin’s Rule 29 motion.
∗ In his opening statement, Austin admitted the conduct charged in Counts 1 and 2, and the Government corroborated this admission by presenting evidence that Austin sold cocaine to a confidential informant on two separate occasions before his arrest.
4 We review de novo whether the district court’s jury instructions constructively
amended the defendant’s indictment. United States v. Miltier, 882 F.3d 81, 92 (4th Cir.),
cert. denied, 139 S. Ct. 130 (2018). A constructive amendment—also called a fatal
variance—occurs when the jury instructions “broaden[] the bases for conviction beyond
those charged in the indictment” or “change the elements of the offense charged, such
that the defendant is actually convicted of a crime other than that charged in the
indictment.” Id. at 93 (internal quotation marks omitted). By contrast, when the jury
instructions differ from the indictment’s allegations without “alter[ing] the crime charged
. . . , a mere variance occurs.” United States v. Malloy, 568 F.3d 166, 178 (4th Cir.
2009); see Miltier, 882 F.3d at 93. “Such a variance does not violate a defendant’s
constitutional rights unless it prejudices the defendant either by surprising him at trial and
hindering the preparation of his defense, or by exposing him to the danger of a second
prosecution for the same offense.” Miltier, 882 F.3d at 93 (internal quotation marks
omitted).
While Count 3 of the superseding indictment charged Austin with possession with
intent to distribute cocaine base, the district court instructed the jury that a unanimous
finding that Austin intended to distribute either cocaine base or cocaine would suffice to
sustain a guilty verdict. But because drug identity is not an element of a § 841(a)(1)
offense, the court’s instruction did not “alter the crime charged,” Malloy, 568 F.3d at 178,
but rather departed from the indictment in a manner “nonessential to the conclusion that
the [§ 841(a)(1)] crime must have been committed,” Miltier, 882 F.3d at 93 (internal
quotation marks omitted). And because Austin has not demonstrated any prejudice
5 resulting from this variance, we conclude that the court did not commit reversible error.
See id.; Dowdell, 595 F.3d at 57, 68-69 (holding that jury verdict convicting defendant of
cocaine base distribution would, at most, harmlessly vary from indictment charging
cocaine distribution).
Finally, Austin assigns several procedural errors to the district court’s Sentencing
Guidelines calculation. However, we need not consider these arguments because, even if
Austin is correct, the record establishes that any error is harmless. See United States v.
Savillon-Matute, 636 F.3d 119, 123 (4th Cir. 2011). Under the “assumed error
harmlessness inquiry,” a procedural error is harmless—and, thus, does not warrant
reversal—if “(1) the district court would have reached the same result even if it had
decided the [G]uidelines issue the other way, and (2) the sentence would be reasonable
even if the [G]uidelines issue had been decided in the defendant’s favor.” United States
v. Gomez-Jimenez, 750 F.3d 370, 382 (4th Cir. 2014) (internal quotation marks omitted).
Here, “the district court made it abundantly clear that it would have imposed the same
sentence . . . regardless of the advice of the Guidelines,” id., thus satisfying the first prong
of the assumed error harmlessness inquiry, id. at 383.
As to the second prong, “[w]hen reviewing the substantive reasonableness of a
sentence, we examine the totality of the circumstances to see whether the sentencing
court abused its discretion in concluding that the sentence it chose satisfied the standards
set forth in [18 U.S.C.] § 3553(a) [2012].” Id. (internal quotation marks omitted). When
assessing the reasonableness of an above-Guidelines-range sentence, we “may consider
the extent of the deviation, but must give due deference to the district court’s decision
6 that the § 3553(a) factors, on a whole, justify the extent of the variance.” Gall v. United
States, 552 U.S. 38, 51 (2007).
In 2008, the district court sentenced Austin to life imprisonment for two cocaine
distribution offenses. However, during a 2014 resentencing hearing, at which Austin
asserted that he had finally learned the difference between right and wrong, the court
reduced his sentence to 132 months. Nevertheless, at Austin’s sentencing for the instant
offenses, the Government produced unrebutted evidence that, shortly after his release in
2015, Austin began looking for a new source of supply. In other words, despite being
granted a second lease on life, Austin promptly abandoned his newfound rectitude in
favor of his old criminal proclivities. Thus, in view of Austin’s significant criminal
history and the compelling need to deter Austin from further criminal acts and to protect
the public, see 18 U.S.C. § 3553(a)(1), (2)(B), (C), we discern no abuse of discretion in
the district court’s decision to impose a substantial upward variance sentence.
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