UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 17-4712

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

RICKY CARLOS GRANT,

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-00145-RJC-1)

Submitted: January 31, 2019 Decided: February 20, 2019

Before WILKINSON and KING, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Samuel B. Winthrop, WINTHROP & WINTHROP, Statesville, 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Unpublished opinions are not binding precedent in this circuit.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:

Ricky Carlos Grant appeals his jury convictions and 300-month sentence for

conspiracy to distribute and possess with intent to distribute heroin, in violation of

(b)(1)(A), 846 (2012); possession with intent to distribute heroin, in

violation of

(a)(1), (b)(1)(C) (2012); and possession of a firearm in

furtherance of a drug trafficking crime, in violation of

(c)(1)(A) (2012). 1

Grant first argues that the district court erred in denying his motion to suppress evidence

because his admissions to police were given absent Miranda 2 warnings and under

circumstances that were calculated to undermine his free will. Second, Grant asserts that

the district court erred in admitting impermissible expert testimony. Third, Grant

contends that the evidence was insufficient to support his conspiracy conviction. Finally,

Grant argues that the district court erred in designating him a career offender. We affirm.

As to Grant’s first contention, “[i]n reviewing a district court’s ruling on a motion

to suppress, this [c]ourt reviews conclusions of law de novo and underlying factual

findings for clear error.” United States v. Clarke,

(4th Cir. 2016)

(brackets and internal quotation marks omitted). “Because the district court denied

[Grant’s] motion to suppress, we construe the evidence in the light most favorable to the

government.”

(internal quotation marks omitted).

1 Grant also pled guilty to two counts of distribution and possession with intent to distribute heroin, in violation of

(a)(1), (b)(1)(C), but he does not challenge those convictions on appeal. 2 Miranda v. Arizona,

(1966).

2 “A confession made during a custodial interrogation will be suppressed unless

police advise the defendant of his rights under Miranda . . . and the defendant knowingly,

intelligently, and voluntar[il]y waives those rights.” United States v. Giddins,

(4th Cir. 2017) (internal quotation marks omitted). “For a waiver to be knowing

and intelligent, it ‘must have been made with a full awareness of both the nature of the

right being abandoned and the consequences of the decision to abandon it.’” United

States v. Dire,

(4th Cir. 2012) (quoting Moran v. Burbine,

(1986)). “[T]he determination of whether a waiver was knowing and intelligent

requires an examination of the totality of the circumstances surrounding the interrogation,

including the suspect’s intelligence and education, age and familiarity with the criminal

justice system, and the proximity of the waiver to the giving of the Miranda warnings.”

(internal quotation marks omitted).

We conclude that the district court did not clearly err in determining that the police

provided Miranda warnings prior to interviewing Grant, as established by the

uncontested testimony presented during the suppression hearing. Moreover, the totality

of the circumstances demonstrates that Grant knowingly and voluntarily waived his

Miranda rights. The district court therefore did not err in denying Grant’s motion to

suppress.

Grant next contends that the district court erred in permitting City of Gastonia

Police Department Officer Clint Bridges to offer expert testimony without foundation or

being qualified as an expert. “We review the district court’s decision to admit expert

testimony for abuse of discretion.” United States v. Landersman,

(4th

3 Cir. 2018). While Grant’s argument that Bridges’ testimony was expert in nature is well

taken, we find no reversible error for two reasons. First, the Government elicited

Bridges’ expert testimony during redirect examination only after Grant first opened the

door to its admission by implying that Grant was not discussing heroin during a recorded

telephone conversation. See United States v. McLaurin,

(4th Cir.

2014) (finding no abuse of discretion where defendant opened door to admission of

evidence). Second, we conclude that any error is harmless given the strong evidence

presented at trial of Grant’s guilt, which included: Grant’s admissions to police that he

purchased and resold significant amounts of heroin over a lengthy period of time;

testimony from a confidential informant (“CI”) that she regularly purchased dealer-level

quantities of heroin from Grant; and the seizure from Grant’s apartment of a large

quantity of heroin along with packaging supplies and firearms. See United States v.

Burfoot,

(4th Cir. 2018) (setting forth standard for harmless error).

We therefore conclude that admission of Bridges’ testimony did not constitute reversible

error.

Third, Grant argues that the district court erred in denying his motion for judgment

of acquittal as to his conspiracy conviction because there was insufficient evidence of an

agreement between him and another to distribute heroin. “We review the denial of a

motion for judgment of acquittal de novo” and “will uphold the verdict if, viewing the

evidence in the light most favorable to the government, it is supported by substantial

evidence, which is evidence that a reasonable finder of fact could accept as adequate and

sufficient to support a conclusion of a defendant’s guilt beyond a reasonable doubt.”

4 United States v. Savage,

(4th Cir.) (internal quotation marks omitted),

cert. denied,

(2018). “[W]e are not entitled to assess witness credibility,

and we assume that the jury resolved any conflicting evidence in the prosecution’s

favor.” Id. (internal quotation marks omitted). Finally, we “allow the government the

benefit of all reasonable inferences from the facts proven to those sought to be

established.” Id. at 219-20 (internal quotation marks omitted).

“To prove conspiracy, the government must demonstrate beyond a reasonable

doubt (1) an agreement between two or more persons to engage in conduct that violates a

federal drug law, (2) the defendant’s knowledge of the conspiracy, and (3) the

defendant’s knowing and voluntary participation in the conspiracy.” United States v.

Gomez-Jimenez,

(4th Cir. 2014). “Such an agreement need not be

formal and may instead be a tacit or mutual understanding between the defendant and his

accomplice.”

(internal quotation marks omitted). “Circumstantial evidence alone is

sufficient to support a conviction for conspiracy.”

(internal quotation marks omitted).

Trial testimony established that Grant admitted to police that he purchased half a

kilogram of heroin from his supplier every 7 to 10 days, cut the heroin, and resold it to

others throughout North Carolina. The CI testified that she bought distribution quantities

of heroin—between 3 and 14 grams—from Grant beginning in July 2015 and continuing

until April 2016. 3 Furthermore, when police searched Grant’s apartment they discovered

3 The CI’s statements regarding controlled purchases conducted on behalf of the Government cannot be used to establish an agreement between Grant and the CI. United States v. Edmonds,

(4th Cir.), vacated and remanded on other (Continued) 5 distribution quantities of heroin, firearms, and supplies associated with heroin trafficking.

Viewed in the light most favorable to the Government, this evidence is sufficient to

establish the requisite agreement in support of a conspiracy conviction, and the district

court therefore did not err in denying Grant’s motion for judgment of acquittal. See

United States v. Howard,

(4th Cir. 2014) (“Evidence of continuing

relationships and repeated transactions can support the finding that there was a

conspiracy, especially when coupled with substantial quantities of drugs.” (alteration and

internal quotation marks omitted)).

Finally, Grant argues that the district court erred in concluding that he is a career

offender. Specifically, Grant contends that the district court should not have counted his

2005 North Carolina conviction for possession with intent to sell or deliver cocaine

(“2005 Conviction”) because that conviction resulted in fewer than 13 months’

imprisonment, and there is insufficient evidence demonstrating that the conspiracy began

within 10 years of the 2005 Conviction.

“In assessing whether a district court properly calculated the Guidelines range,

including its application of any sentencing enhancements, we review the district court’s

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

Fluker,

(4th Cir. 2018) (alterations and internal quotation marks

omitted). Any conviction that resulted in a sentence of imprisonment of less than 13

grounds,

(2012). Nevertheless, purchases that occurred prior to the CI’s cooperation with police may be used to establish the existence of a conspiracy.

6 months may only be counted if that sentence was imposed within 10 years of the

commencement of defendant’s offense of conviction. U.S. Sentencing Guidelines

Manual § 4A1.2(e)(2) (2016); see USSG § 4B1.2 cmt. n.3 (applying § 4A1.2 definitions

to career offender provision). The CI’s unrebutted testimony established that she began

purchasing distribution quantities of heroin from Grant within 10 years of the 2005

Conviction; the district court found the CI’s testimony credible. Because Grant proffers

no evidence contradicting that testimony, we conclude that the district court did not

clearly err in relying on the CI’s testimony, considering the 2005 Conviction a predicate

offense, and applying the career offender enhancement.

Accordingly, we affirm the district court’s judgment. 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

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