US v. Ronald Campbell

Filing 920091207

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4312 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. RONALD ERIC CAMPBELL, a/k/a Peanut, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Florence. R. Bryan Harwell, District Judge. (4:08-cr-00179-RBH-1) Submitted: November 20, 2009 Decided: December 7, 2009 Before MICHAEL, GREGORY, and DUNCAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Ray Coit Yarborough, Jr., LAW OFFICE OF RAY COIT YARBOROUGH, JR., Florence, 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 Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Ronald sentence imposed Eric Campbell his appeals guilty from plea, the 111-month to a following pursuant written plea agreement, to one count of possession with intent to distribute heroin, in violation of 21 U.S.C. 841(a)(1), (b)(1)(C) (2006) (Count 1), and one count of using and carrying a firearm in of furtherance 18 U.S.C. filed a of a drug trafficking (2006) to crime, (Count Anders in 3). v. violation Campbell's 924(c)(1)(A) brief counsel pursuant California, 386 U.S. 738 (1967), asserting that there are no meritorious district level grounds for in appeal, but questioning Campbell's district whether base the court erred 1 calculating whether the offense properly for Count and court enhanced Campbell's sentence for his role in the offense and for obstruction of justice. Campbell was advised of his right to The Government has file a pro se brief, but has not done so. not filed a brief. Finding no error, we affirm. Consistent with United States v. Booker, 543 U.S. 220 (2005), the district court is required to follow a multi-step process at sentencing. First, it must calculate the proper sentencing range prescribed by the Guidelines. Gall v. United States, 552 U.S. 38, 49 (2007); see also United States v. Abu Ali, 528 F.3d 210, 260 (4th Cir. 2008), cert. denied, 129 S. Ct. 2 1312 (2009). It must then consider that range in light of the parties' arguments regarding the appropriate sentence and the factors set out in 18 U.S.C. 3553(a) (2006) before imposing its sentence. F.3d at 260. Gall, 552 U.S. at 49-50; see also Abu Ali, 528 We review the district court's sentence for abuse of discretion, first ensuring that the district court did not commit any "significant procedural error," such as failing to properly calculate the advisory Guidelines range. U.S. at 41, 51. All of Campbell's arguments go to whether the district court range. erred in calculating first his offense level the and Guidelines court Gall, 552 Campbell questions whether district erred by using the entire weight of the heroin mixture sold to calculate his base offense level, rather than the weight of the pure heroin. weights are A district court's factual findings regarding drug reversible only if clearly erroneous. United States v. Lamarr, 75 F.3d 964, 972 (4th Cir. 1996). The Guidelines provide that "[u]nless otherwise specified, the weight of a controlled substance set forth in the table refers to the entire weight of any mixture or substance containing a detectable amount of the controlled substance." U.S. Sentencing Guidelines Manual ("USSG") 2D1.1(c), Notes to Drug Quantity Table, (A) (2008). 3 Additionally, in Chapman v. United States, the Supreme Court stated that "Congress adopted a `market-oriented' approach to punishing drug trafficking, under which the total quantity of what is distributed, rather than the amount of pure drug involved, is used to determine the length of the sentence." 500 U.S. 453, 461 (1991). Although the Chapman Court was interpreting 841(b)(1)(A) and (b)(1)(B), rather than 841(b)(1)(C), it noted that "Congress clearly intended the dilutant, cutting agent, or carrier medium to be included in the weight of [cocaine or heroin] for sentencing purposes." 460. Id. at Therefore, we find that the district court's adoption of the entire weight of the mixture containing heroin listed in the Presentence Investigation Report was not clearly erroneous. The district court then properly determined that, based on the 12.54 grams of the mixture containing heroin, Campbell's base offense level was 16. USSG 2D1.1(c)(12). next questions whether the district court Campbell properly enhanced his sentence, pursuant to USSG 3B1.1(c), for his alleged role in the offense. "A district court's findings regarding sentence enhancement are factual in nature and are reviewed only for clear error." F.3d 415, 426 (4th Cir. 2002). two-level increase to the United States v. Carter, 300 Pursuant to USSG 3B1.1(c), a base offense level is defendant's warranted "[i]f the defendant was an organizer, leader, manager, 4 or supervisor" in the charged offense and the offense involved less than five participants. The adjustment applies if the defendant organized, led, managed, or supervised one or more participants. The USSG 3B1.1, cmt. n.2. evidence reveals that a confidential informant ("CI") for the Horry County Police Department arranged a drug buy with Campbell. Instead of handling the sale himself, Campbell sent two runners to deliver the drugs. The district court found that, because Campbell arranged the drug buy with the CI, but sent runners to deliver the drugs, the enhancement was proper. We find that the district court did not clearly err in its conclusion. Finally, Campbell questions whether the district court properly enhanced his sentence, pursuant to USSG 3C1.1, for his alleged threats against other witnesses. are The district for USSG court's clear findings regarding 300 the F.3d enhancement at 426. reviewed to error. Carter, Pursuant 3C1.1, a two-level increase to the defendant's base offense level is warranted: If (A) the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with respect to the investigation, prosecution, or sentencing of the instant offense of conviction, and (B) the obstructive conduct related to (i) the defendant's offense of conviction and any relevant conduct; or (ii) a closely related offense. 5 Obstructive otherwise conduct includes "threatening, a intimidating, witness, or or unlawfully influencing co-defendant, juror, directly or indirectly, or attempting to do so." 3C1.1, cmt. n.4(a). USSG At the sentencing hearing, the Government produced two letters, both written prior to Campbell's guilty plea. The first letter was written by an inmate who was to be a witness against Campbell at trial, alleging that Campbell threatened The violence against the inmate and his family if he testified. second letter, written by another inmate, alleged that Campbell told the inmate to tell another witness against Campbell that Campbell would kill any witness who testified against him. The inmate who wrote the second letter also testified at Campbell's sentencing hearing that Campbell threatened him and two other inmates who were to testify against Campbell. Campbell testified that he did not threaten In his defense, any witnesses, although he admitted that he got into a shouting argument with one of them. We find that, based on the evidence presented, the district court did not clearly err in applying the enhancement for obstruction of justice. Accordingly, for the reasons described, the district court did not commit reversible error by assigning Campbell a 6 total offense level of 18, * a criminal history category of IV, and a Guidelines range of forty-one to fifty-one months' imprisonment on Count 1. In accordance with Anders, we have reviewed the record in this case and have found no meritorious issues for appeal. We therefore affirm the district court's judgment. This court requires that counsel inform Campbell, in writing, of his right to petition the Supreme Court of the United States for further review. counsel counsel If Campbell requests that a petition be filed, but believes may move that in such this a court petition for would to be frivolous, from leave withdraw representation. Counsel's motion must state that a copy thereof We dispense with oral argument because was served on Campbell. the facts and legal conclusions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED Campbell's total offense level after enhancements was 20 and the district court determined that Campbell was entitled to a two-level reduction for acceptance of responsibility for pleading guilty. Because the Government did not appeal or cross-appeal the district court's grant of an offense level reduction for acceptance of responsibility, we have no authority to sua sponte review that determination. See Greenlaw v. United States, 128 S. Ct. 2559, 2564 (2008). * 7

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