Argued: January 31, 2019
from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, Senior District Judge. (5:16-cr-00065-RLV-DCK-1)
Jason Foster, LAW OFFICE OF RICK FOSTER, Asheville, North
Carolina, for Appellant.
Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY,
Asheville, North Carolina, for Appellee.
Andrew Murray, United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Charlotte, North Carolina, for Appellee.
WILKINSON, NIEMEYER, and KING, Circuit Judges.
NIEMEYER, CIRCUIT JUDGE:
his conviction for distribution of over 50 grams of
methamphetamine, in violation of 21 U.S.C. §§
841(a)(1) and 841(b)(1)(A), Joseph Davis contends that the
district court erred (1) in admitting an out-of-court
statement that a confidential informant made about having
purchased drugs from Davis prior to the relevant
investigation; (2) in failing to require adequate
authentication of an officer's photographs of the
informant's cellphone screen as she purportedly texted
Davis in preparation for a controlled buy; and (3) in
admitting a recording of a telephone conversation between the
informant and Davis, authenticated by an officer's
identification of Davis's voice. Davis also contends that
the district court erred in failing to explain its use of
coconspirator testimony to find drug quantities for
sentencing purposes after the jury had acquitted Davis on a
charged conspiracy count.
reasons that follow, we conclude that the district court did
not abuse its discretion in its admission of the challenged
evidence. We also conclude that Davis's sentence was not
procedurally unreasonable. The district court adequately
explained its decision to credit the testimony of Davis's
coconspirators about drug quantities despite the acquittal on
the conspiracy count. Accordingly, we affirm.
was indicted in four counts with methamphetamine trafficking
and related violations in Charlotte, North Carolina, during
the period from 2014 to 2016. Count I alleged that Davis
participated in a conspiracy to distribute 50 grams or more
of methamphetamine and 500 grams or more of a substance
containing methamphetamine, in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(A), and 846. Count II
charged Davis with possession of a firearm in furtherance of
the conspiracy, in violation of 18 U.S.C. § 924(c).
Count III alleged that Davis distributed 50 grams or more of
methamphetamine on or about October 12, 2016, in violation of
21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A). And Count
IV charged Davis with possession of a firearm by a felon, in
violation of 18 U.S.C. § 922(g)(1).
trial, the government offered evidence of an alleged
conspiracy in which Reggie Shaw supplied Davis with
substantial amounts of methamphetamine to sell to Roderick
Roberts and Tangie Carroll. It also offered evidence of a
controlled buy on or about October 12, 2016, in which Davis
sold a confidential informant (hereafter "the
Informant"), 54 grams of pure methamphetamine. That
transaction took place at a mailbox cluster for the apartment
complex where Davis lived and was witnessed by an undercover
officer. Finally, the government offered evidence of
Davis's illegal possession of firearms.
jury found Davis not guilty on Counts I and II, which charged
Davis with conspiracy to traffic in methamphetamine and
possession of a firearm in furtherance of that conspiracy,
but found him guilty of distributing 50 grams or more of
methamphetamine on or about October 12, 2016, and possession
of a firearm by a felon.
district court imposed a downward-variance sentence of 260
months' imprisonment, after calculating an advisory
Guidelines range of 360 months' to life imprisonment. In
determining the offense level, the court affirmed the
presentence report's determination that Davis was
responsible for 4.5 kilograms or more of methamphetamine
based on the testimony given at trial by Davis's alleged
coconspirators, Shaw and Carroll. Based on the jury's
acquittal on the conspiracy count, Davis objected to the
district court's use of the coconspirators' testimony
to determine drug quantities. The district court overruled
the objection, finding that the alleged coconspirators
testified "convincingly" as to drug amounts.
filed this appeal challenging his conviction, based on the
allegedly erroneous evidentiary determinations, and his
sentence, based on the court's purported failure to
explain why it relied on acquitted conduct.
his conviction, Davis contends that the district court erred
in admitting three items of evidence during trial: (1) the
testimony of Officer Jeff Jenkins explaining that he enlisted
the Informant to participate in a controlled buy because she
told him that she had purchased methamphetamine from Davis;
(2) photographs that Officer Jenkins took of the
Informant's cellphone screen as she was purportedly
texting with Davis; and (3) a recording of a telephone call
between the Informant and a man whom Officer Jenkins
identified as ...