US v. Steven Riggs, II

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 2:10-cr-00002-JPJ-PMS-4 Copies to all parties and the district court/agency. [998918419].. [11-4943]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-4943

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
STEVEN F. RIGGS, II,
Defendant - Appellant.

Appeal from the United States District Court for the Western
District of Virginia, at Big Stone Gap.
James P. Jones,
District Judge. (2:10-cr-00002-JPJ-PMS-4)

Submitted:

June 18, 2012

Decided:

August 17, 2012

Before GREGORY, AGEE, and FLOYD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Timothy W. McAfee, TIMOTHY W. MCAFEE, PLLC, Norton, Virginia,
for Appellant.
Timothy J. Heaphy, United States Attorney,
Roanoke, Virginia, Albert P. Mayer, Special Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Abingdon,
Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Steven

F.

Riggs

appeals

his

210-month

sentence

and

six-year term of supervised release after pleading guilty to
conspiracy with intent to distribute OxyContin (oxycodone) or
its

equivalents

in

violation

841(b)(1)(C) and 846 (2006).
Equivalency

Tables

in

of

21

U.S.C.

§§

Riggs contends that:

U.S.S.G

§

2D1.1

are

841(a)(1),
(1) the Drug

arbitrary

and

capricious and unconstitutional; (2) the district court abused
its discretion by denying his motion to withdraw his plea of
guilty; (3) the district court’s finding as to his attributable
drug

weight

district

for

court’s

sentencing
finding

purposes

that

Riggs

was

erroneous;

managed

or

(4)

the

supervised

another participant for sentencing purposes was erroneous; and
(5) the district court’s findings with respect to Riggs’s prior
criminal history for sentencing purposes were erroneous.
For the reasons that follow, we affirm the district
court’s sentence.

I.
Riggs first asserts that the Drug Equivalency Tables
in U.S.S.G. § 2D1.1 have no rational basis and to sentence a
person

according

process.

This

to

the

Circuit

conversions
has

is

previously

a

violation

held

that

of

the

due
Drug

Equivalency Tables in U.S.S.G. § 2D1.1 are valid and do not
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violate the Constitution.

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See United States v. Bayerle, 898

F.2d 28, 32 (4th Cir. 1990).

That decision is binding, and

Riggs’s argument to the contrary is without merit.

II.
Riggs next contends that the district court’s denial
of his motion to withdraw his guilty plea constitutes an abuse
of discretion.

It is well-established that once the district

court has accepted a guilty plea, it is within the district
court’s discretion whether to grant a motion to withdraw it.
Fed. R. Crim. P. 11(d)(2)(b).
key

factor

conducted.
2003).

is

whether

the

In deciding such a motion, the
Rule

11

hearing

was

properly

United States v. Bowman, 348 F.3d, 408 414 (4th Cir.

If the Rule 11 proceeding is adequate, then a strong

presumption attaches that the plea is final and binding.

United

States v. Lambey, 974 F.2d 1389, 1394 (4th Cir. 1992).

The

court also considers six additional factors:
(1)whether the defendant has offered credible evidence
that
his
plea
was
not
knowing
or
otherwise
involuntary; (2) whether the defendant has credibly
asserted his legal innocence; (3) whether there has
been a delay between entry of the plea and filing of
the motion; (4) whether the defendant has had close
assistance of counsel; (5) whether the withdrawal will
cause prejudice to the government; and (6) whether
withdrawal will inconvenience the court and waste
judicial resources.
United States v. Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000)
(citing United States v. Moore, 931 F.2d 245, 248 (4th Cir.
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1991)).

The

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movant

bears

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the

withdrawal should be granted.

burden

of

demonstrating

that

United States v. Dyess, 478 F.3d

224, 237 (4th Cir 2007).
Here, the district court conducted a thorough guilty
plea hearing in compliance with Fed. R. Crim. P. 11, ensuring
that Riggs understood:

his rights to plead not guilty, have a

jury trial, and be represented by an attorney; his trial rights
to

confront

and

cross-examine

witnesses,

be

protected

from

compelled self-incrimination, testify and present evidence, and
compel the attendance of witnesses; that he waived his trial
rights if he pled guilty; the nature of the charge to which he
was pleading guilty; the maximum possible and mandatory minimum
penalties

as

a

result

of

his

plea,

including

imprisonment,

fines, supervised release, and special assessments; and that the
court would consider not only the statutory provisions but also
sentencing

guidelines

determining

his

and

sentence.

other
The

court

sentencing
also

factors

ensured

that

in
his

guilty plea was voluntary, and that there was a factual basis
for the plea.
Riggs affirmed that he had been over the indictment
with his counsel and that he had an opportunity to review and
discuss the charges with his attorney.

Riggs also stated that

he was satisfied with his lawyer’s representation.

When asked

if “anyone attempted in any way to force [him] to plead guilty,”
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Riggs

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answered,

“I

wouldn’t

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say

I

had

been

forced

to

plead

guilty, but I believe it’s in my best interests to.”

Riggs

further stated that he did not dispute or contest any of the
facts represented by the government and admitted at the hearing
that he sold some of the drugs.
Because the district court conducted a thorough guilty
plea hearing in compliance with Fed. R. Crim. P. 11 and the
relevant factors weigh against Riggs’s motion to withdraw his
guilty plea, we cannot say that the district court abused its
discretion

by

denying

Riggs’s

motion

to

withdraw

his

guilty

plea.

III.
Riggs next argues that the district court erred in
calculating the quantity attributable to him for purposes of
calculating his base offense level for sentencing.

A person

convicted of conspiracy to distribute controlled substances “is
accountable for all quantities of contraband with which he was
directly
quantities

involved
of

and

contraband

. . .
that

all
were

reasonably
within

the

criminal activity the he jointly undertook.”

foreseeable
scope

of

the

U.S.S.G. § 1B1.3

(2009).
In
conspiracy

United
to

States

distribute

v.

Bell,

oxycondone
5

this

Court

considered

in

which

one

of

a

the

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participants, Bell, had a legitimate prescription for some of
the pills she sold and also claimed that she retained some drugs
for personal use.

667 F.3d 431, 442 (4th Cir. 2011).

There,

this Court reaffirmed the proposition that where a defendant has
been convicted of conspiracy, drugs retained by the defendant
for personal use are considered “contraband with which he was
directly

involved”

sentencing purposes.

and

therefore

“relevant

Bell,

557 F.3d at 422.

conduct”

for

Under Bell, all of

the drugs Riggs handled or that were obtained on his trips to
Florida are properly attributable to him, and the district court
therefore

did

not

err

in

including

those

amounts

in

its

calculations.
Moreover, in compliance with United States v. Carter,
564 F.3d 325, 330 (4th Cir. 2009), the district court performed
an individualized assessment of the evidence against Riggs, on
the record, and attributed to Riggs only those quantities that
were

confirmed

hearing.

by

witnesses

who

appeared

at

the

sentencing

The district court further noted that the estimate the

court used was “very conservative” in light of the testimony at
the hearing.

As such, the district court’s attribution to Riggs

of the drugs he handled and obtained was not clearly erroneous.

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IV.
Riggs next contends that the district court erred by
increasing

his

supervisor.

A

base

offense

defendant

level

qualifies

for
for

being
the

a

manager

adjustment

managed or supervised one or more other participants.
§

3B1.1(b),

cmt.

2.

A

“participant”

is

a

person

or

if

he

U.S.S.G.
who

is

criminally responsible for the commission of the offense and the
person need not be indicted or convicted.

See id., cmt. 1.

The

indictment in this case charges Riggs with conspiring with his
co-defendants and “others, known and unknown to the grand jury.”
The evidence presented supports the finding that Riggs
introduced participants to his system, exercised control over
them

as

they

accompanied

him

to

Florida,

authority over the terms of the trips.

and

had

plenary

It was therefore not

clearly erroneous for the district court to agree with the PSR’s
recommendation
respect

to

his

that

Riggs

offense,

was
and

a
to

manager
increase

or

supervisor

his

offense

with
level

accordingly, pursuant to U.S.S.G. § 3B1.1(b).

V.
Finally,

Riggs’s

various

arguments

concerning

the

district court’s treatment of criminal convictions from his past
are likewise without merit.

The PSR calculated and the district

court adopted a criminal history score of twenty-one for Riggs.
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Accordingly, Riggs was placed into criminal history category VI.
This

category

applies

wherever

thirteen

assigned.

U.S.S.G. Chapter 5, Part A.

range

district

the

Riggs’s

criminal

court

history

used
score

would
were

or

more

points

are

Thus, the sentencing

not

be

reduced

impacted
by

nine

unless
or

more

points.
The crux of Riggs’s argument is based on the premise
that

twelve

of

his

prior

convictions

–-

those

reflected

in

paragraphs 109, and 112-13, of the PSR –- should not have been
included in the computation of Riggs’s criminal history category
because

they

qualify

conspiracy offense.

as

“relevant

conduct”

to

his

instant

We disagree.

Only Riggs himself attempted to connect these offenses
to the conspiracy, and then only at the sentencing hearing, when
he had a motive to do so.

Moreover, none of the offenses that

Riggs

the

seeks

to

connect

to

conspiracy

occurred

along

the

route to Florida and instead each occurred locally in Kentucky,
Tennessee, or Virginia.
the

district

court

Based on the totality of the evidence,

was

not

required

to

testimony, and did not err by rejecting it.
v. Thompson, 554 F.3d 450, 452 (4th Cir. 2009).

8

believe

Riggs’s

See United States

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VI.
For
district

the

court’s

reasons
sentence.

set
We

forth

above,

dispense

with

we

affirm

oral

the

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

9