UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 09-4266

UNITED STATES OF AMERICA, 

 Plaintiff – Appellee, 

 v. 

BRYAN KENDALL MORRISON, a/k/a Drake, 

 Defendant – Appellant. 

Appeal from the United States District Court for the Western 

District of Virginia, at Abingdon. James P. Jones, Chief 

District Judge. (1:08-cr-00024-jpj-pms-15) 

Submitted: December 29, 2009 Decided: February 5, 2010 

Before MOTZ, DUNCAN, and AGEE, Circuit Judges. 

Affirmed by unpublished per curiam opinion. 

Charles Y. Sipe, GOODMAN, WEST & FILETTI, PLLC, Charlottesville, 

Virginia, for Appellant. Julia C. Dudley, United States 

Attorney, Jennifer R. Bockhorst, Assistant United States 

Attorney, Abingdon, Virginia, for Appellee. 

Unpublished opinions are not binding precedent in this circuit. 
PER CURIAM: 

 Bryan Kendall Morrison was found guilty by a jury of 

one count of conspiracy to distribute and possess with the 

intent to distribute fifty grams or more of cocaine base and 

five hundred grams or more of cocaine, in violation of 21 U.S.C. 

§ 841(a)(1) (2006) and 21 U.S.C. § 846 (2006). Prior to trial, 

the Government filed a Sentencing Enhancement Information, 

charging that Morrison had four prior convictions for felony 

drug offenses that had become final prior to the offense charged 

in the indictment, and notifying Morrison that upon conviction 

for the offense in the indictment he would be sentenced to a 

mandatory term of life imprisonment. At sentencing, the 

district court denied Morrison’s objection to his presentence 

report (“PSR”), and sentenced him to life imprisonment pursuant 

to 21 U.S.C. § 841(b)(1)(A) (2006). On appeal, Morrison 

contends that: (1) the district court erred in sentencing him to 

life in prison; (2) the evidence was insufficient to sustain his 

conviction; and (3) the district court erred in admitting 

evidence of his prior felony drug convictions pursuant to 

Federal Rule of Evidence 404(b). For the reasons that follow, 

we affirm. 

 Morrison first asserts that he should not have been 

sentenced to life in prison. Morrison argues that “to count as 

a prior conviction [under § 841(b)], a career offender felony 

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predicate must also score criminal history points under [U.S. 

Sentencing Guidelines Manual] § 4A1.2,” and cites to this 

court’s decision in United States v. Mason, 284 F.3d 555 

(4th Cir. 2002), for support. Under this analysis, Morrison 

claims that the first conviction relied upon by the Government 

cannot count as a predicate conviction because he was a minor at 

the time of conviction, and that his second and third 

convictions should count as only one qualifying conviction. 

Because the district court concluded that Morrison’s fourth 

prior conviction could not be counted for the purposes of the 

statutory mandatory minimum under § 841, Morrison’s argument, if 

accepted, would leave only one conviction to count as a 

predicate offense. 

 Under 21 U.S.C. § 841(b)(1)(A), “[i]f any person 

commits a violation of this subparagraph . . . after two or more 

prior convictions for a felony drug offense have become final, 

such person shall be sentenced to a mandatory term of life 

imprisonment without release and fined in accordance with the 

preceding sentence.” Whether a district court properly 

interpreted the term “felony drug offense” in § 841(b)(1)(A) 

“involves a pure question of law,” which this court reviews de 

novo. United States v. Burgess, 478 F.3d 658, 661 (4th Cir. 

2007), aff’d, 553 U.S. 124 (2008). 

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 Section 841 does not define the term “felony drug 

offense,” but 21 U.S.C. § 802(44) (2006) does, “in plain and 

unambiguous terms.” Burgess, 478 F.3d at 662. Section 802(44) 

defines a felony drug offense as “an offense that is punishable 

by imprisonment for more than one year under any law of the 

United States or of a State or foreign country that prohibits or 

restricts conduct relating to narcotic drugs, marihuana, 

anabolic steroids, or depressant or stimulant substances.” 

21 U.S.C. § 802(44). As we have previously held, “because the 

term ‘felony drug offense’ is specifically defined in § 802(44), 

and § 841(b)(1)(A) makes use of that precise term, the logical, 

commonsense way to interpret ‘felony drug offense’ in 

§ 841(b)(1)(A) is by reference to the definition in § 802(44).” 

Burgess, 478 F.3d at 662 (internal quotation marks and 

alternations omitted). 

 Despite Morrison’s assertions, this court’s holding in 

Mason and the requirements of the U.S. Sentencing Guidelines 

Manual for designation as a career offender pursuant to § 4B1.1 

are inapposite to his sentence. Rather, the district court made 

clear at the sentencing hearing that Morrison was being 

sentenced under the mandatory minimum sentence provision 

contained within § 841(b) for defendants with two or more prior 

felony drug convictions. 

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 The district court relied on three convictions in the 

Superior Court of Alamance County, North Carolina in sentencing 

Morrison: (1) an April 26, 2000 conviction for possession with 

the intent to sell or deliver marijuana, in violation of N.C. 

Gen. Stat. § 90-95(a) (2007), manufacturing marijuana, in 

violation of N.C. Gen. Stat. § 90-95(a)(1), and felony 

possession of cocaine, in violation of N.C. Gen. Stat. § 90-

95(d)(2) (2007); (2) a May 30, 2003 conviction for conspiracy to 

sell cocaine, in violation of N.C. Gen. Stat. § 90-98 (2007), 

with an offense date of September 6, 2002; and (3) a 

May 30, 2003 conviction for conspiracy to sell cocaine, in 

violation of N.C. Gen. Stat. § 90-98, with an offense date of 

September 24, 2002. Morrison did not dispute these convictions. 

 All three of Morrison’s convictions qualify as prior 

felony drug offenses under § 802(44). First, although two of 

the convictions occurred on the same day, because they resulted 

from two separate “episodes of criminality,” they constitute two 

separate convictions for the purpose of sentencing under 

§ 841(b)(1)(a). United States v. Ford, 88 F.3d 1350, 1366 (4th 

Cir. 1996). Second, all three convictions were under the laws 

of North Carolina that prohibit “conduct relating to narcotic 

drugs, marihuana, anabolic steroids, or depressant or stimulant 

substances.” 21 U.S.C. § 802(44). Finally, although Morrison 

himself was not sentenced to a term of imprisonment for more 

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than one year, all of the convictions were punishable by 

imprisonment for more than one year. See N.C. Gen. Stat. 

§ 15A-1340.17(c), (d) (2007); United States v. Harp, 406 F.3d 

242, 246 (4th Cir. 2005) (explaining that, for the purpose of 

determining “whether a conviction is for a crime punishable by a 

prison term exceeding one year,” a court must consider “the 

maximum aggravated sentence that could be imposed for that crime 

upon a defendant with the worst possible criminal history”). As 

a result, Morrison had a sufficient number of prior felony drug 

offenses to qualify him for the statutorily prescribed mandatory 

minimum, and the district court did not err in sentencing 

Morrison to life imprisonment. 

 Morrison also argues that the evidence was 

insufficient to sustain his conviction of conspiracy to 

distribute and to possess with intent to distribute cocaine base 

and cocaine. In reviewing a challenge to the sufficiency of the 

evidence, we review the evidence in the light most favorable to 

the Government, and ask whether “‘any rational trier of facts 

could have found the defendant guilty beyond a reasonable 

doubt.’” United States v. Harvey, 532 F.3d 326, 333 (4th Cir. 

2008) (quoting United States v. Tresvant, 677 F.2d 1018, 1021 

(4th Cir. 1982)). This court considers both direct and 

circumstantial evidence, and “allow[s] the [G]overnment all 

reasonable inferences that could be drawn in its favor.” Id. 

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Conflicts in testimony are weighed by the jury, and this court 

will not weigh the evidence or judge the credibility of the 

witnesses. Id. 

 To prove conspiracy to distribute and to possess with 

intent to distribute a controlled substance, the Government must 

have established “beyond a reasonable doubt that: ‘(1) an 

agreement’ to distribute and ‘possess cocaine with intent to 

distribute existed between two or more persons; (2) the 

defendant knew of the conspiracy; and (3) the defendant 

knowingly and voluntarily became a part of this conspiracy.’” 

United States v. Yearwood, 518 F.3d 220, 225-26 (4th Cir.) 

(quoting United States v. Burgos, 94 F.3d 849, 857 (4th Cir. 

1996) (en banc)), cert. denied, 129 S. Ct. 137 (2008). 

Nonetheless, because a conspiracy is, “by its very nature . . . 

clandestine and covert,” proving its existence is often done 

through circumstantial evidence “and the context in which the 

circumstantial evidence is adduced.” Burgos, 94 F.3d at 857. 

Accordingly, the Government “need not prove that the defendant 

knew the particulars of the conspiracy or all of his 

coconspirators” or that his connection to the conspiracy was 

anything more than “slight.” Id. at 858, 861. The 

“[c]ircumstantial evidence sufficient to support a conspiracy 

conviction need not exclude every reasonable hypothesis of 

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innocence, provided the summation of the evidence permits a 

conclusion of guilt beyond a reasonable doubt.” Id. at 858. 

 With these standards in mind, the evidence presented 

at trial established that during the time in question, Morrison 

and numerous other individuals were involved in selling cocaine 

in Bristol, Virginia. Derrick Evans, a co-conspirator, 

testified that he, Kerry Lee, and Oedipus Mumphrey came to 

Bristol in 2006 and began selling cocaine there, explaining that 

Lee and Mumphrey would make trips to various locations to obtain 

large quantities of cocaine, and then return to Bristol where 

they provided Evans with cocaine to sell and sold cocaine on 

their own. Mumphrey confirmed Evans’s account of the activities 

of the three men, stating that the purpose of coming to Bristol 

was to sell cocaine. Mumphrey testified that Morrison and five 

other individuals came with him in 2006 to Bristol to help sell 

the cocaine faster. He detailed the structure of the 

conspiracy, explaining that the cocaine was purchased, cooked up 

in hotel rooms by those assisting him, and then distributed to 

two individuals who were responsible for distributing the drugs 

to the sellers, including Morrison. Mumphrey unequivocally 

stated that Morrison “sold a couple of ounces” for him, and that 

after he did not properly return money from the drug sales, 

Morrison dealt with Mumphrey directly for the purposes of the 

sales. 

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 Other co-conspirators, including Candace Maynard, 

Jessica Rodriquez, and Emmanuel Morton, all testified that 

Morrison came to Bristol to sell cocaine with other members of 

the conspiracy and was present in the hotel rooms where the 

conspirators gathered to sell and obtain the drugs. Morton 

testified that he witnessed Mumphrey give cocaine to Morrison. 

Construing the testimony in the light most favorable to the 

Government, and allowing the Government all reasonable 

inferences that could be drawn in its favor, the evidence showed 

that Morrison was involved in an agreement between two or more 

persons to possess with intent to distribute cocaine, that he 

was aware of the conspiracy, and that he knowingly and 

voluntarily became a part of it. Accordingly, the evidence was 

sufficient to support the jury’s verdict. 

 Lastly, Morrison argues that the district court erred 

when it permitted the jury to hear evidence of his prior felony 

drug convictions, asserting that this evidence was unfairly 

prejudicial. Under Rule 404(b) of the Federal Rules of 

Evidence, “[e]vidence of other crimes, wrongs, or acts is not 

admissible” if that evidence is used to prove the character of 

the defendant “in order to show action in conformity therewith.” 

However, such evidence is admissible for other purposes, “such 

as proof of motive, opportunity, intent, preparation, plan, 

knowledge, identity, or absence of mistake or accident.” Fed. 

9 
R. Evid. 404(b). As it “is understood to be a rule of 

inclusion,” the list provided in Rule 404(b) is not exhaustive. 

United States v. Queen, 132 F.3d 991, 994-95 (4th Cir. 1997). 

Evidence under Rule 404(b) is admissible if four conditions are 

satisfied: 

First, “the evidence must be relevant to an issue, 

such as an element of an offense, and must not be 

offered to establish the general character of the 

defendant. In this regard, the more similar the prior 

act is (in terms of physical similarity or mental 

state) to the act being proved, the more relevant it 

becomes.” Second, “the act must be necessary in the 

sense that it is probative of an essential claim or an 

element of the offense.” Third, “the evidence must be 

reliable.” Finally, “the evidence’s probative value 

must not be substantially outweighed by confusion or 

unfair prejudice in the sense that it tends to 

subordinate reason to emotion in the factfinding 

process.” 

United States v. Gray, 405 F.3d 227, 239 (4th Cir. 2005) 

(quoting Queen, 132 F.3d at 997) (citations and alterations 

omitted). Whether a district court properly admitted evidence 

under Rule 404(b) is an evidentiary ruling that is reviewed for 

abuse of discretion. Id. at 238. 

 All four conditions are satisfied here. First, the 

evidence was not admitted for the purpose of establishing 

Morrison’s character. Morrison was charged with conspiracy to 

distribute and to possess with intent to distribute cocaine. 

The prior convictions that the Government sought to introduce 

were delivering and sale of cocaine, possession with intent to 

10 
sell and deliver cocaine, maintaining a vehicle or dwelling or 

place to sell cocaine, and possession of drug paraphernalia, 

which the Government argued demonstrated Morrison’s knowledge, 

intent, and absence of mistake with regard to the conspiracy 

charge. To prove the conspiracy charge against Morrison, the 

Government was required to show that Morrison knew of the 

conspiracy and knowingly and voluntarily became a part of it. 

Morrison’s prior convictions for numerous cocaine-related 

offenses, including possession and sale, were relevant and 

necessary to demonstrate that he had knowledge of these 

activities, he had the intent to engage in the same activities 

during the life of the conspiracy, and his engagement in these 

activities was not accidental or mistaken. The evidence was 

reliable, having been introduced during the testimony of Special 

Agent Todd Brewer, who obtained a certified copy of Morrison’s 

convictions. Finally, the probative value of the evidence was 

not substantially outweighed by confusion or unfair prejudice. 

Although this information was damaging to Morrison, it was not 

unfairly prejudicial, nor did it “subordinate reason to emotion 

in the factfinding process.” Gray, 405 F.3d at 239. No 

additional details were provided regarding Morrison’s 

convictions that could have inflamed the jury’s emotions. 

Despite Morrison’s claims that there was a paucity of physical 

evidence against him, the testimony of his co-conspirators was 

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sufficient to demonstrate his active involvement in the 

conspiracy, such that the prior conviction evidence cannot be 

said to be responsible for his conviction. Thus, the district 

court did not abuse its discretion in admitting the evidence 

regarding Morrison’s prior convictions under Rule 404(b). 

 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 the 

court and argument would not aid the decisional process. 

AFFIRMED