US v. Michael Darby
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:07-cr-01253-MBS-1. Copies to all parties and the district court/agency. [998731222].. [09-4368]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4368
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL ANTHONY DARBY,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Orangeburg.
Margaret B. Seymour, District
Judge. (5:07-cr-01253-MBS-1)
Argued:
September 21, 2011
Decided:
November 29, 2011
Before DUNCAN and AGEE, Circuit Judges, and Damon J. KEITH,
Senior Circuit Judge of the United States Court of Appeals for
the Sixth Circuit, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: William Michael Duncan, AUSTIN & ROGERS, PA, Columbia,
South Carolina, for Appellant. John David Rowell, OFFICE OF THE
UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.
ON BRIEF: William N. Nettles, United States Attorney, Columbia,
South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Appellant
the
evidence
Michael
leading
to
Darby
the
conviction
his
contests
sufficiency
on
of
one
of
count
conspiracy to possess with intent to distribute 500 grams or
more
of
cocaine
and
50
grams
or
more
of
cocaine
base,
in
violation of 21 U.S.C. § 846, and one count of possession with
intent to distribute five grams or more of cocaine base, in
violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B).
challenges
the
district court.
resulting
292-month
sentenced
Darby also
imposed
by
the
For the reasons that follow, we affirm.
I.
A.
On
October
17,
2007,
Michael
Darby
and
codefendant
Melvin Wright were both indicted in Columbia, South Carolina on
charges of conspiracy to possess with intent to distribute and
to distribute 500 grams or more of cocaine and 50 grams or more
of cocaine base, in violation of 21 U.S.C. §§ 846, 841(a)(1),
841(b)(1)(A)
(“Count
One”),
and
possession
with
intent
to
distribute and distribution of five grams or more of cocaine
base
in
violation
of
21
841(b)(1)(C) (“Count Two”).
U.S.C.
§§
841(a)(1),
841(b)(1)(B),
Count One of the indictment alleges
that the conspiracy begins “at least in the middle to late part
of 2003.” The charges largely stem from a controlled purchase of
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crack
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cocaine
Date Filed: 11/29/2011
whereby
Darby’s
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ex-girlfriend,
Keesha
Williams,
agreed to act under the advisement of the Orangeburg Department
of Public Safety and purchase crack cocaine from Darby while
employing audio and video recording devices.
On November 30, 2006, unbeknownst to Michael Darby,
Keesha
Williams
called
Lieutenant
Samuel
Jenkins
of
the
Orangeburg Department of Public Safety explaining that she could
“help him bring down Michael Darby” by getting Darby to sell her
narcotics.
Williams
Darby recorded.
agreed
to
have
her
communications
with
In one recorded phone conversation, Williams
began by inquiring if the receiver was Darby and Darby replied
affirmatively.
Williams continued by inquiring if she could
purchase an “ounce” for her cousin.
Darby replied, “I probably
could
want
get
it
to
him,
but
I
don’t
to
meet
him.”
Darby
established the purchase price for the ounce of cocaine to be
$800.
The next day, on December 1, 2006, Williams drove to
Darby’s
apartment
with
installed in her car.
audio
and
video
recording
devices
Upon arriving at Darby’s apartment, Darby
informed Williams that he could not sell Williams the cocaine at
that time because he had to still “cook it up.” Darby explained
that he only had “salt,” or powder form of cocaine, and not
“hard,”
the
crack
cocaine
that
Williams
sought
to
purchase.
Darby informed Williams that the transaction would take place at
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codefendant Melvin Wright’s residence and that the cost would
increase to $850.
Though Darby’s face is not captured in the
video, his voice is identified in an audio recording.
Williams
drove to Wright’s residence after obtaining an additional $50 to
cover the price increase of the crack cocaine.
After Williams
arrived at Wright’s house, she witnessed Darby arrive and enter
Wright’s house without speaking.
Wright actually conducted the
drug sale by handing Williams crack cocaine through the window.
Shortly
after
the
transaction
between
Williams
and
Wright,
Williams called Darby at the behest of Lt. Jenkins to inquire
why Darby did not personally deliver the crack cocaine to her
and instead chose to involve Wright.
makes all of his transactions.
to
Lt.
Jenkins.
Williams
Darby replied that Wright
Williams gave the crack cocaine
underwent
a
comprehensive
“strip”
search both before she drove to Darby’s apartment on December 1,
2006 and after she handed the drugs over to Lt. Jenkins.
The Government established the foregoing facts through
the testimony of Keesha Williams.
The government also produced
several audio and video recordings.
An audio recording revealed
the initial phone conversation between Williams and Darby about
the drug sale.
A video recording from the camera installed in
Williams’s car captured the drug transaction between Williams
and
Wright.
A
chemical
analysis
established
purchased 23.97 grams of crack cocaine.
4
that
Williams
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The Government also called Joe Moultrie, a cooperating
federal inmate, to testify about his prior drug dealings with
Darby.
Moultrie testified that he was a supplier for Darby and
began supplying him with crack cocaine in 2002 when he sold
Darby
28
grams
of
crack
cocaine
for
$900.
According
to
Moultrie, he supplied Darby with at least 28 grams of crack
cocaine or more at least once or twice a month until Moultrie’s
arrest in 2004.
Moultrie further testified that, by agreement,
he would supply Darby with the crack cocaine and Darby would pay
him later.
In total, Moultrie estimated that he sold Darby five
kilograms during his time supplying Darby with cocaine.
The Government also called another cooperating federal
inmate
and
former
drug
dealer,
Stacy
Shannon,
to
testify
pursuant to a written plea agreement in which he had received a
sentence reduction.
narcotics
with
Shannon testified that he began dealing
Darby
in
2003
when
Darby
came
to
him
and
requested to buy four and a half ounces of crack cocaine. He
further
testified
that
shortly
thereafter,
Darby
began
purchasing between 135 grams and two kilograms of cocaine powder
from him. Shannon testified that Wright would often accompany
Darby
when
Shannon
Shannon
estimated
conducted
that
he
drug
supplied
transactions
Darby
with
with
at
Darby.
least
200
kilograms of cocaine out of the 500 kilograms of cocaine he
received while dealing cocaine.
5
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Special Agent Stacy Brown with the Bureau of Alcohol,
Tobacco,
Firearms
Government.
for
the
and
Explosives
also
testified
for
the
Special Agent Brown provided the controlled funds
transaction
and
testified
that
he
was
present
on
December 1, 2006 for the controlled purchase and the subsequent
arrest of Darby.
Darby
of
his
statement
that
He further testified that after he advised
Miranda
he
was
rights,
Darby
purchasing
voluntarily
kilogram
and
made
the
half-kilogram
quantities from a supplier in Mexico every two weeks for four
months.
Special Agent Brown testified that Darby also stated
that he had purchased approximately 5 kilograms in total over
the course of the four months he purchased cocaine from this
supplier.
B.
On December 19, 2008, a jury found Darby guilty of
both
the
conspiracy
charge (Count Two).
charge
(Count
One)
and
the
distribution
The same jury found Wright not guilty on
the conspiracy charge and guilty on the distribution charge.
Darby
filed
a
motion
for
acquittal
on
December
24,
2008,
claiming that Wright’s acquittal on the conspiracy charge leaves
insufficient evidence that Darby conspired with anybody.
He
further claimed that insufficient evidence existed to support a
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guilty verdict on Count Two.
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The district court denied the
motion in an order filed April 20, 2009.
On January 4, 2010, the district court sentenced Darby
to
292
months
in
prison.
The
sentencing
guidelines
and
based
Darby
responsible
for
at
was
292
upon
least
months
the
200
was
within
court
finding
kilograms
of
the
that
cocaine
throughout the conspiracy, putting him at a base offense level
of 38 pursuant to U.S.S.G. § 2D1.1(c)(1). The court also applied
a
firearm
enhancement
2D1.1(b)(1).
During
of
two
levels
sentencing,
Darby
pursuant
to
submitted
a
U.S.S.G.
§
motion
to
undergo a psychiatric evaluation to determine whether a lesser
sentence would serve the goals of sentencing in Darby’s case.
Darby requested an authorization of $3,500.00 in funds for the
evaluation.
The
court
instead
authorized
$1,600.
When
new
counsel was appointed for Darby, Darby submitted a supplemental
motion requesting $3,500 for an evaluation.
the motion.
The court denied
This appeal followed.
II.
Darby
appeals
the
district
court’s
motion for acquittal and his 292 month sentence.
denial
of
his
Darby contends
that the guilty verdict on Counts One and Two was not supported
by substantial evidence.
As to Count One, Darby argues that
there was insufficient evidence that he conspired to distribute
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crack
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cocaine
Date Filed: 11/29/2011
with
anybody
other
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than
Wright,
and
Wright’s
acquittal on the conspiracy count creates insufficient evidence
that he conspired with Wright.
As to Count Two, Darby argues
generally that there is insubstantial evidence that Darby is
guilty of possession with intent to distribute and distribution
of five grams or more of cocaine base.
Darby
unreasonable
further
and
in
challenges
violation
of
his
18
sentence
U.S.C.
as
§
being
3553(a).
Specifically, Darby contests the district court’s: (1) finding
that Darby distributed at least 200 kilograms of cocaine; (2)
application of the firearm enhancement; and (3) refusal to grant
additional funds for a psychiatric evaluation. We discuss each
argument in turn.
A.
We review a district court’s denial of a motion for
acquittal de novo.
(4th Cir. 2010).
United States v. Green, 599 U.S. 360, 267
In reviewing the sufficiency of the evidence
to support a conviction, we assess whether a rational trier of
fact could have found the essential elements of the crime beyond
a reasonable doubt when viewing the evidence in the light most
favorable to the prosecution.
Jackson v. Virginia, 443 U.S.
307, 319 (1979). We must uphold the jury’s verdict if there is
substantial evidence to support the verdict when viewing the
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evidence most favorable to the Government. Glasser v. United
States, 315 U.S. 60, 80 (1942); United States v. Beidler, 110
F.3d
1064,
“evidence
1067
that
a
(4th
Cir.
1997).
reasonable
finder
Substantial
of
fact
evidence
could
accept
is
as
adequate and sufficient to support a conclusion of a defendant’s
guilt beyond a reasonable doubt.” United States v. Burgos, 94
F.3d 849, 862 (4th Cir. 1996)(en banc)(citation omitted).
A
reviewing court does not assess the credibility of witnesses,
but rather assumes “that the jury resolved all contradictions in
testimony in favor of the Government.” Green, 599 F.3d at 367
(quoting United States v. United Med. & Surgical Supply Corp.,
989 F.2d 1390, 1402 (4th Cir. 1993).
1.
As a preliminary matter, we reject the notion that
Darby’s conviction should be vacated on the conspiracy charge
merely because his co-conspirator Melvin Wright was acquitted on
the same charge.
It is well established that an acquittal of
the appellant’s alleged co-conspirator does not necessitate that
the appellant’s conviction be vacated.
See United States v.
Powell, 469 U.S. 57, 65 (1984)(holding that a defendant cannot
challenge his conviction merely because it is inconsistent with
jury’s verdict of acquittal on another count); United States v.
Collins,
412
F.3d
515,
519-20
9
(4th
Cir.
2005)(refusing
to
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overturn a conspiracy conviction merely because a co-conspirator
was acquitted by the same jury); United States v. Thomas, 900
F.3d 37, 40 (4th Cir. 2002)(holding that an acquittal of sole
co-conspirator
does
not
require
reversal
of
defendant’s
conviction); see also United States v. Andrews, 850 F.3d 1557,
1561
(11th
Cir.
1988)(en
banc)(“Consistent
verdicts
are
unrequired in joint trials for conspiracy: where all but one of
the charged conspirators are acquitted, the verdict against the
one can stand.”); United States v. Vales-Valencia, 823 F.3d 381,
382 (9th Cir. 1987) (“the acquittal of all conspirators but one
does not necessarily indicate that the jury found no agreement
to act”).
Thus, a jury can acquit Wright and still find that a
conspiracy existed between Darby and Wright.
Darby
Wright’s
seems
acquittal,
to
the
argue
more
totality
of
precisely
the
that
evidence
given
does
not
substantially show that Darby conspired with either Wright or
anyone else.
cocaine
base
We disagree.
with
intent
To prove a conspiracy to possess
to
distribute,
the
Government
must
establish that:(1) an agreement to possess cocaine with intent
to
distribute
defendant
knew
existed
of
between
the
two
or
conspiracy;
more
and
persons;
(3)
the
(2)
the
defendant
knowingly and voluntarily became a part of this conspiracy. See
United States v. Collazo, 732 F.2d 1200, 1205 (4th Cir. 1984).
Viewing the evidence most favorably to the Government, we find
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that there was sufficient evidence to support a conviction for
the conspiracy charge.
The
testimony
evidence
presented
through
Keesha
Williams’s
established an agreement by Darby to possess cocaine
with the intent to distribute.
In one recorded conversation
between
Williams
agrees
“ounce”
for
her
and
Darby,
cousin,
he
commenting
to
that
sell
Darby
Williams
could
get
an
the
cocaine to him, but did not want to meet Williams’s cousin.
When Williams drove to meet Darby on the night of the controlled
purchase,
Darby
instructed
Williams
residence to buy the crack cocaine.
to
meet
him
at
Wright’s
This arrangement of selling
illegal drugs at Wright’s residence where the cocaine had to be
“cooked up” at the very least evinces an agreement between Darby
and Wright.
Darby’s presence at Wright’s residence after his
conversation
with
Williams
corroborates
this
agreement
and
further establishes that he knowingly and voluntarily became a
part in this conspiracy. Darby then told Williams, after the
controlled
purchase,
that
he
used
Wright
to
make
all
his
purchases.
This is patent evidence that a conspiracy existed to
distribute drugs between Darby and Wright.
Notwithstanding
the
substantial
evidence
of
a
conspiracy established by Williams’s testimony, Shannon provided
further evidence of such a conspiracy.
Shannon testified that
he sold a total of 200 kilograms of cocaine to Darby, who agreed
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to pay Shannon for the cocaine after he sold it.
between
Shannon
and
Darby
establish a conspiracy.
often
accompany
is
also
This agreement
sufficient
evidence
to
Shannon’s testimony that Wright would
Darby
during
his
drug
transactions
is
circumstantial evidence that a conspiracy existed between Wright
and
Darby.
Darby
with
Moreover,
cocaine
Moultrie’s
testimony
establishes
a
that
he
conspiratorial
supplied
agreement
between Darby and Moultrie.
Since we find that there was sufficient evidence from
which a reasonable juror could find that Darby was engaged in a
conspiracy between two or more persons, we briefly address the
charge in Count One that the conspiracy involved a distribution
of
500
grams
or
cocaine base.
that
Darby
testimony
Darby’s
of
cocaine
and
50
grams
or
more
with
It is sufficient to note that Shannon’s testimony
received
that
own
more
he
200
sold
statement
kilograms
Darby
that
five
he
of
cocaine,
kilograms
purchased
of
five
Moultrie’s
cocaine,
and
kilograms
of
cocaine from a supplier in Mexico all establish that at least
500 grams of cocaine and 50 grams of cocaine base was intended
to be distributed throughout the conspiracy.
We therefore find
that the evidence was sufficient to support a guilty verdict as
to Count One.
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2.
Darby’s contention that there is insufficient evidence
to
convict
him
on
Count
Two
is
equally
unavailing.
Darby
asserts that there is little direct evidence linking him to the
distribution
of
the
crack
cocaine
because
that
the
video
recording does not show him exchanging crack cocaine for money
and
there
were
no
phone
records
admitted
Williams was in fact talking to Darby.
to
confirm
that
Darby argues that his
conviction on Count Two is almost entirely based on what he
believes to be a biased witness--Keesha Williams.
Williams’s
uphold
his
requirement
evidence.
testimony
conviction
that
the
on
against
Count
Darby
Two.
prosecution
is
First,
prove
its
sufficient
there
case
by
is
to
no
direct
Although there may not be a wealth of the direct and
red-handed evidence that Darby would like to see, the proper
standard is whether there exists substantial evidence--direct or
circumstantial--for
verdict.
Darby
was
a
rational
juror
to
support
a
guilty
In this case, there was a controlled purchase in which
present
at
the
scene
of
the
transaction
after
responding to an offer to purchase drugs for a price that he set
over a recorded phone conversation.
Williams and Special Agent
Brown both testified that Darby was present at the controlled
purchase where Williams purchased 23 grams of crack cocaine.
The
fact
that
Wright
handed
the
13
cocaine
to
Williams
at
the
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behest of Darby does not absolve Darby from the charge of Count
Two.
Darby’s
own
statement
to
Special
Agent
Brown
that
he
purchased approximately 5 kilograms from his supplier over the
preceding
four
months
coupled
with
the
evidence
that
Darby
actively sold crack cocaine, as evidenced by the December 1,
2006 purchase, is sufficient to uphold Count Two.
Darby’s argument discounting Williams’s testimony and
undermining
the
credibility
gains no traction here.
of
other
prosecutorial
witnesses
As discussed above, a reviewing court
does not assess the credibility of witnesses, but rather assumes
that the jury resolved issues of credibility in favor of the
Government.
B.
Darby
challenges
the
district
court’s
finding
at
sentencing which holds him accountable for the distribution of
200
kilograms
of
cocaine
with
5
kilograms
of
throughout the conspiracy charged in Count One.
cocaine
base
This finding
was necessary for the court to apply a base offense level of 38
pursuant to U.S.S.G. § 2D1.1(C)(1).
1.
This court reviews a district court’s calculation of
drugs
attributable
to
a
defendant
14
for
clear
error.
United
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States v. Kiulin, 360 F.3d 456, 461 (4th Cir. 2004).
The
sentencing guidelines advise the court that in a scenario “where
there is not drug seizure or the amount seized does not reflect
the
scale
quantity
of
of
the
offense,
the
the
controlled
Application Notes 12.
court
shall
substance.”
approximate
U.S.S.G.
§
the
2D1.1,
We find that there is sufficient evidence
in the record to support the district court finding that Darby
was
responsible
for
200
kilograms
of
powder
seized
from
cocaine
and
5
kilograms of cocaine base.
The
23.8
controlled
purchase
conspiracy
to
grams
does
not
distribute
reflect
cocaine,
so
Williams
the
the
scale
after
of
district
the
Darby’s
court
was
within its discretion to approximate the amount of cocaine for
sentencing purposes.
In determining the amount of cocaine to
attribute to Darby, the district court properly relied upon the
testimony of Shannon and Moultrie.
supplied
Darby
a
total
of
200
Shannon testified that he
kilograms
of
powder
cocaine.
Moultrie testified that he had sold Darby a total of 5 kilograms
of cocaine base to Darby.
We decline to hold that the district
court clearly erred in relying on these two independent bases to
approximate
the
quantity
of
cocaine
responsible.
15
for
which
Darby
was
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2.
Darby also contests the district court’s application
of the firearm enhancement pursuant to U.S.S.G. § 2D1.1(b)(1),
which increased the defendant’s offense level by two levels. We
review a district court’s application of a firearm enhancement
under this provision for clear error.
United States v. Manigan,
592 F.3d 621, 626 (4th Cir. 2010).
The firearm enhancement is proper when “the weapon was
possessed in connection with drug activity that was part of the
same
course
of
conduct
or
common
scheme
as
the
offense
conviction.” Id. at 628-29 (internal citations omitted).
of
The
Government must prove the facts needed to support a sentencing
enhancement by a preponderance of the evidence.
“should
be
applied
clearly
improbable
if
the
that
weapon
the
was
weapon
The enhancement
present,
was
unless
connected
it
with
is
the
offense.” U.S.S.G. § 2D1.1, Application Note 3.
To
relied
on
support
assertions
the
in
firearm
the
enhancement,
presentence
the
Government
investigation
(“PSR”) and Darby’s statement to Special Agent Brown.
report
The PSR
reflected that upon Darby’s arrest at his residence on November
8, 2007, agents found 3 firearms, including a .45 caliber pistol
Darby admittedly retrieved from his nightstand when the agents
entered his home to execute a search warrant.
proffered
The Government
that 400 grams of powder cocaine was found in Darby’s
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master bedroom and 471 grams of powder cocaine was found in
total.
Further, agents found 39.4 grams of crack cocaine, a set
of digital scales, body armor, and $5,611.00 in U.S. currency at
Darby’s
residence.
We
find
that
the
Government
met
the
preponderance of evidence standard in arguing that the guns,
cocaine, drug paraphernalia, and body armor all indicate that
Darby used the guns to protect himself and the drugs, which in
turn
shows
that
the
charged offense.
weapons
were
used
in
connection
to
the
We therefore hold that there was no clear
error on part of the district court in applying the firearm
enhancement.
3.
Finally, Darby challenges the district court’s refusal
to
pay
the
$3,500
fee
requested
psychiatrist of his choice.
by
Darby
to
pay
for
the
The court originally approved a
payment of $1,600 for Darby to hire a psychiatrist, but did not
approve
the
extra
$1,900
that
Darby
obtain his preferred psychiatrist.
granted
his
request,
his
argued
was
necessary
He argues that had the court
preferred
psychiatrist’s
evaluation
would have assisted in determining mitigation factors.
contends
that
the
district
court
ultimately
discretion by denying Darby $1,900. We disagree.
17
to
abused
Darby
its
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We can find no case law, nor does Darby cite any, that
stands for the proposition that a district court must approve
the exact amount of funds that a defendant requests to enable
him to hire the psychiatrist of his choice for the purpose of
exploring
trial.
Darby
mitigating
factors
during
the
sentencing
phase
of
Had this request been submitted to determine whether
was
competent
to
stand
trial,
then
we
would
inquire
whether there was reasonable cause to believe that Darby was
suffering
from
understand
the
against him.
a
mental
nature
defect
and
which
rendered
consequences
of
him
the
proceedings
Darby’s argument, aside
from having no basis in law, is highly speculative.
his
Rather,
he
to
See 18 U.S.C.A. § 4241(a) (West 2000 & Supp.
2007). However, this is not the case.
assert
unable
incompetency
either
claims
an
that
during
evaluation
the
may
He does not
trial
have
or
after.
produced
an
opinion that would cause the district court to depart downward
from the advisory guidelines.
The only consideration that Darby
points to is Darby’s age and lack of a prior record. This is not
enough to find that the court abused its discretion.
Moreover,
the court considered Darby’s lack of a prior record in assigning
him a Criminal History Category of I.
The court ultimately
imposed a sentence that was on the lower end of the advisory
sentencing guidelines.
18
Appeal: 09-4368
Document: 53
Date Filed: 11/29/2011
Page: 19 of 19
We find it important to highlight that the district
court did grant Darby funds to procure a psychiatric evaluation.
However minimal the approved funds may have been, Darby does not
argue that the funds granted would be insufficient to hire a
psychiatrist
to
conduct
an
evaluation--only
that
it
was
insufficient to hire his preferred psychiatrist.
We find that the court did not abuse its discretion in
denying Darby’s motion for additional funds for the purposes of
a psychiatric evaluation.
We further find that the sentence
rendered by the district court was not an abuse of discretion as
it was not only within the advisory sentencing guidelines, it
was also at the lower end of those guidelines.
III.
For the foregoing reasons, we affirm the judgment of
the district court.
AFFIRMED
19
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