United States of America v. Lamont Decortez Wheeler

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4312
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
LAMONT DECORTEZ WHEELER,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. R. Bryan Harwell, District Judge.
(4:11-cr-02343-RBH-1)
Submitted: November 25, 2014 Decided: December 4, 2014
Before NIEMEYER, SHEDD, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
G. Wells Dickson, Jr., WELLS DICKSON, P.A., Kingstree, South
Carolina, for Appellant. Alfred William Walker Bethea, Jr.,
Assistant United States Attorney, Florence, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Lamont Decortez Wheeler appeals his convictions and
the 300-month aggregate downward variance sentence imposed
following his jury trial on multiple charges arising out of a
drug trafficking conspiracy. Wheeler’s counsel filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), stating
there are no meritorious grounds for appeal, but questioning
Wheeler’s competency to stand trial, the court’s failure to give
a cautionary Fed. R. Evid. 404(b) instruction when admitting
evidence of Wheeler’s prior state convictions, the sufficiency
of the evidence, and the reasonableness of Wheeler’s sentence.
We affirm.
Wheeler first questions the district court’s ruling
that he was competent to stand trial. We review a district
court’s competency determination for clear error. United
States v. Robinson, 404 F.3d 850, 856 (4th Cir. 2005). A
defendant shall be considered incompetent if the district court
finds “by a preponderance of the evidence that the defendant is
presently suffering from a mental disease or defect rendering
him mentally incompetent to the extent that he is unable to
understand the nature and consequences of the proceedings
against him or to assist properly in his defense.” 18 U.S.C.
§ 4241(d) (2012). The defendant bears the burden of proving by
a preponderance of the evidence that he is incompetent. 18

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U.S.C. § 4241(d); Cooper v. Oklahoma, 517 U.S. 348, 362 (1996);
Robinson, 404 F.3d at 856.
“Medical opinions are usually persuasive evidence on
the question of whether a sufficient doubt exists as to the
defendant’s competence.” United States v. General, 278 F.3d
389, 398 (4th Cir. 2002) (internal quotation marks omitted).
Here, a forensic psychologist conducted two evaluations of
Wheeler, each spanning several weeks. Both times, she concluded
that he was competent to stand trial, finding that, despite past
mental health issues, Wheeler did not have an active mental
illness that would affect his competency, he demonstrated an
understanding of the charges against him and the courtroom
proceedings, and he could assist counsel in his defense.
Although defense counsel’s law partner reported that
communication with Wheeler had been difficult and, on one
occasion, Wheeler exhibited bizarre, irrational behavior, this
testimony was merely anecdotal and not sufficient to override
the psychologist’s professional opinion. We conclude that
Wheeler failed to meet his burden and that the district court
did not clearly err in concluding that he was competent to stand
trial.
Next, Wheeler questions whether the district court
abused its discretion by declining to give a cautionary
instruction pursuant to Fed. R. Evid. 404(b) when the Government

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introduced evidence of his March 2008 felony drug convictions.
This Court reviews a district court’s evidentiary rulings for
abuse of discretion. United States v. Taylor, 754 F.3d 217, 226
n.* (4th Cir.), petition for cert. filed, ___ S. Ct. ___ (Sept.
4, 2014) (No. 14-6166).
Rule 404(b) prohibits the admission of evidence of
other wrongs or bad acts solely to prove a defendant’s bad
character, but the Rule 404(b) inquiry applies only to evidence
of acts extrinsic to the ones charged. Intrinsic acts are not
limited by Rule 404(b). United States v. Otuya, 720 F.3d 183,
188 (4th Cir. 2013), cert. denied, 134 S. Ct. 1279 (2014).
Evidence is intrinsic if it is “inextricably intertwined” with
evidence of the charged offenses and forms an integral part of
the testimony concerning those offenses. United States v.
Lighty, 616 F.3d 321, 352 (4th Cir. 2010).
The evidence of Wheeler’s March 2008 felony drug
convictions was properly introduced as intrinsic to the charged
offenses. The underlying offenses occurred in December 2006 and
November 2007, in the middle of the time charged in the
conspiracy and occurred at the same location as the majority of
the transactions charged in the indictment. Furthermore, the
convictions involved crack, one of the substances charged in the
indictment. Because evidence of Wheeler’s 2008 felony drug
convictions was clearly intertwined with the charged offenses,

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we conclude that it concerned acts that were intrinsic to the
charged offenses. Accordingly, no cautionary instruction was
necessary.
Next, Wheeler questions whether the evidence was
sufficient to support each of his convictions. This court must
uphold a jury verdict if there is substantial evidence, viewed
in the light most favorable to the Government, to support it.
Burks v. United States, 437 U.S. 1, 17 (1978); United States v.
Smith, 451 F.3d 209, 216 (4th Cir. 2006). In reviewing the
sufficiency of the evidence, we accord the Government “the
benefit of all reasonable inferences from the facts proven to
those sought to be established,” United States v. Tresvant, 677
F.2d 1018, 1021 (4th Cir. 1982), and do not weigh the
credibility of the evidence or resolve any conflicts in the
evidence. United States v. Beidler, 110 F.3d 1064, 1067 (4th
Cir. 1997). “Reversal for insufficient evidence is reserved for
the rare case where the prosecution’s failure is clear.” Id.
(internal quotation marks omitted).
The jury found Wheeler guilty on Count One, conspiracy
to possess with intent to distribute and to distribute cocaine
and crack, in violation of 21 U.S.C. § 846 (2012), specifically
finding him accountable for less than 500 grams of cocaine and
280 grams or more of crack. To prove the conspiracy, the
Government had to establish that (1) an agreement existed

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between two or more individuals to distribute and possess with
intent to distribute cocaine and crack; (2) Wheeler knew about
the conspiracy; and (3) he “knowingly and voluntarily became a
part of this conspiracy.” United States v. Hackley, 662 F.3d
671, 678 (4th Cir. 2011) (internal quotation marks omitted).
The Government also had to prove beyond a reasonable doubt that
the conspiracy involved at least 280 grams of cocaine. 21
U.S.C. § 841(b)(1)(A) (providing enhanced statutory sentencing
range for 280 grams or more of crack); see United States v.
Brooks, 524 F.3d 549, 557 (4th Cir. 2008) (recognizing that
after Apprendi v. New Jersey, 530 U.S. 466 (2000), “specific
threshold drug quantities must be treated as elements of
aggravated drug trafficking offenses, rather than as mere
sentencing factors” (internal quotation marks omitted)); see
also Alleyne v. United States, 133 S. Ct. 2151, 2156 (2013)
(extending Apprendi to statutory minimum sentences).
The evidence presented at trial established that
Wheeler engaged in the trafficking of crack and cocaine at his
trailer from as early as 2000 until Wheeler’s arrest in 2011.
In particular, on numerous occasions, Darren Monroe cooked
cocaine into crack for Wheeler, which Wheeler then sold. In
addition to the other evidence of the quantities of crack and
cocaine Wheeler bought and sold, Monroe estimated that he cooked
a total of one to two kilograms of crack for Wheeler.

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Furthermore, a search of Wheeler’s trailer in December 2009
revealed ample evidence of drug trafficking, including two sets
of scales, baggies containing crack and powder cocaine, and a
loaded pistol. Also, more than $2000 in cash was recovered from
Wheeler’s person. United States v. Carrasco, 257 F.3d 1045,
1048 (9th Cir. 2001) (stating that scales are known tools of
drug trade); United States v. Ward, 171 F.3d 188, 195 (4th Cir.
1999) (noting that Rolex watch, a wad of currency in the amount
of $1055, and a handgun were all indicia of drug dealing). We
conclude that the evidence was sufficient to prove beyond a
reasonable doubt the conspiracy charged in Count One.
To sustain Wheeler’s convictions for possession with
intent to distribute crack, in violation of 21 U.S.C.
§ 841(a)(1) (2012) (Counts Two, Four, and Eight), the Government
had to show that, on August 19, 2009, December 10, 2009, and
August 29, 2011, Wheeler: (1) possessed crack, (2) that he did
so knowingly, and (3) that he intended to distribute it. United
States v. Penniegraft, 641 F.3d 566, 572 (4th Cir. 2011). The
evidence presented at trial showed that a cooperating witness,
Larry Lane, made a controlled buy of 0.15 grams of crack from
Wheeler at his trailer in Latta, South Carolina, on August 21,
2009, and another cooperating witness, Margaret Goss, made a
controlled buy of 0.3 grams of crack from Wheeler at his trailer
in Latta, South Carolina, on August 29, 2011. On December 10,

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2009, Wheeler was arrested with over $2000 on his person and, as
previously stated, two sets of scales, baggies containing crack
and cocaine, a loaded firearm, and other indicia of drug
trafficking were recovered from his trailer. This evidence was
sufficient to support Wheeler’s convictions on the three
substantive § 841 counts.
Counts Five and Six respectively charged Wheeler with
violating 18 U.S.C. §§ 922(g)(1) and 924(c) (2012) on or about
December 10, 2009. To establish a violation of 18 U.S.C.
§ 922(g)(1), the Government had to show that: (1) Wheeler was a
convicted felon; (2) he knowingly possessed a firearm; and
(3) the firearm traveled in interstate commerce. United
States v. Gallimore, 247 F.3d 134, 136 (4th Cir. 2001). To
sustain the § 924(c)(1)(A) conviction, the Government had to
establish two elements: (1) Wheeler used or carried a firearm
and (2) “did so during and in relation to a drug trafficking
crime.” United States v. Strayhorn, 743 F.3d 917, 925 (4th
Cir.), cert. denied, 134 S. Ct. 2689 (2014).
Wheeler stipulated that he had previously been
convicted of a felony. The evidence presented at trial showed
that, on December 10, 2009, law enforcement recovered from a
bedroom in Wheeler’s trailer a pistol that was next to his
driver’s license and established an interstate nexus for the
pistol. As previously stated, substantial evidence of drug

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trafficking was recovered from his trailer on this date.
Furthermore, witnesses testified that they saw guns at Wheeler’s
residence where he engaged in drug trafficking. We conclude
that the evidence was sufficient to support Wheeler’s firearms
convictions.
Finally, Wheeler challenges the reasonableness of his
downward variance sentence. We review a sentence for
reasonableness, applying “a deferential abuse-of-discretion
standard.” Gall v. United States, 552 U.S. 38, 41 (2007). A
sentence “within or below a properly calculated Guidelines range
is presumptively reasonable [on appeal].” United States v.
Louthian, 756 F.3d 295, 306 (4th Cir.), cert. denied, 135 S. Ct.
295 (2014). The defendant bears the burden to rebut this
presumption “by showing that the sentence is unreasonable when
measured against the . . . § 3553(a) factors.” Id. We conclude
that Wheeler failed to rebut the presumption of reasonableness
afforded his below-Guidelines sentence.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious grounds for
appeal. We therefore affirm Wheeler’s convictions and sentence.
This court requires that counsel inform Wheeler, in writing, of
the right to petition the Supreme Court of the United States for
further review. If Wheeler requests that a petition be filed,
but counsel believes that such a petition would be frivolous,

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then counsel may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Wheeler. 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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