US v. Beverly Baker

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motions to file supplemental brief(s) [999513397-2], [999521902-2]. Originating case number: 5:11-cr-00237-D-1. Copies to all parties and the district court/agency. [999578587]. [14-4720]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4720

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
BEVERLY ALLEN BAKER,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
James C. Dever III,
Chief District Judge. (5:11-cr-00237-D-1)

Submitted:

April 30, 2015

Before GREGORY
Circuit Judge.

and

WYNN,

Decided:

Circuit

Judges,

and

May 6, 2015

DAVIS,

Senior

Affirmed by unpublished per curiam opinion.

Marilyn G. Ozer, MASSENGALE & OZER, Chapel Hill, North Carolina,
for Appellant.
Thomas G. Walker, United States Attorney,
Jennifer P. May-Parker, Yvonne V. Watford-McKinney, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Beverly Allen Baker was convicted by a jury of conspiracy
to

distribute

280

grams

or

more

of

cocaine

base

(crack)

in

violation of 21 U.S.C. § 846 (2012), and nine counts of crack
distribution, in violation of 21 U.S.C. § 841 (2012).

After a

remand of her sentence, the district court resentenced Baker to
360 months of imprisonment.

Baker appeals, contending that her

sentence is procedurally unreasonable because the district court
miscalculated her Sentencing Guidelines range.

She contests the

district court’s findings on drug quantities attributed to her
transactions
Burrell.

with

Wayne

Vick,

Malcolm

Dowdy,

and

Michael

Finding no error, we affirm the sentence.

We review a sentence for reasonableness, applying an abuse
of discretion standard.
(2007).

The

court

Gall v. United States, 552 U.S. 38, 46

first

reviews

for

significant

procedural

error, and if the sentence is free from such error, it then
considers substantive reasonableness.
error

includes

improperly

Id. at 51.

calculating

the

Procedural

Guidelines

range,

treating the Guidelines range as mandatory, failing to consider
the

18

U.S.C.

§ 3553(a)

(2012)

factors,

adequately explain the selected sentence.

and

failing

to

Id.

The Government must prove the drug quantity attributable to
the

defendant

States v.

by

Carter,

a

preponderance

300

F.3d

415,
2

of

the

425

(4th

evidence.
Cir.

2002).

United
The

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district court may rely on information in the presentence report
unless the defendant shows that the information is inaccurate or
unreliable.

Id.

A district court’s findings on drug quantity

are generally factual in nature and, therefore, are reviewed by
this court for clear error.

Id.

In determining the quantity of

drugs attributable to the defendant, “[w]here there is no drug
seizure or the amount seized does not reflect the scale of the
offense,

the

controlled

court

shall

substance.”

approximate
U.S.

the

Sentencing

quantity
Guidelines

of

the

Manual

§ 2D1.1 cmt. n.5. (2013).
Baker argues that the evidence of the quantity of crack
attributed

to

her

transactions

with

Wayne

Burrell was inconsistent and unreliable.

Vick

and

Michael

We have reviewed the

trial testimony provided and that recited by the district court *
and the applicable record and conclude that the court did not
clearly err in its determination of applicable drug quantity,
which resulted in a base offense level of 36.
Baker also challenges the district court’s attribution of
5.4 kilograms of crack based on purchases from Malcolm Dowdy
when the district court only found 2.4 kilograms at the first
sentencing.

The Government responds that the district court’s

*

Baker did not include the original trial testimony of
Michael Burrell in the Joint Appendix, but the district court
quoted it in its sentence justification.

3

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finding was supported by a preponderance of the evidence, citing
the supporting trial testimony.
When

an

original

sentence

is

vacated

in

its

entirety,

“prior sentencing proceedings [are] nullified,” and the district
court conducts resentencing de novo.

United States v. Muhammad,

478 F.3d 247, 250 (4th Cir. 2007); see Pepper v. United States,
131 S. Ct. 1229, 1251 (2011).
vacated

in

part

“forecloses

or

for

a

relitigation

However, where the sentence is

limited
of

purpose,

issues

the

expressly

mandate
or

rule

impliedly

decided by the appellate court,” as well as “issues decided by
the district court but foregone on appeal or otherwise waived,
for example because they were not raised in the district court.”
United

States

v.

Susi,

674

F.3d

278,

(internal quotation marks omitted).

283

(4th

Cir.

2012)

When the court’s opinion

“instructs or permits reconsideration of sentencing issues on
remand,

the

district

court

may

consider

the

issue

de

novo,

entertaining any relevant evidence on that issue that it could
have heard at the first hearing.”

United States v. Alston, 722

F.3d 603, 606-07 (4th Cir.) (internal quotation marks omitted),
cert. denied, 134 S. Ct. 808 (2013).
Here,
entirety
opinion.”

the

and

remand

remanded

opinion
for

vacated

“resentencing

the
in

sentence
accord

in

with

its
this

United States v. Baker, 539 F. App’x 299, 306 (4th

Cir. 2013) (No. 12-5025).

The opinion expressly contemplated
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that the district court should make factual findings regarding
the

Government’s

suggested

whether

an

increased

remand.

Id. at 302.

amount

applicable
for

quantities,

Dowdy

was

including

appropriate,

on

The district court’s finding was therefore

fully within the scope of the remand opinion.
Accordingly,

we

affirm

the

sentence.

motions to file a pro se supplemental brief.
oral

argument

adequately

because

presented

in

the
the

facts

and

materials

legal
before

We

deny

Baker’s

We dispense with
contentions
this

court

are
and

argument would not aid the decisional process.
AFFIRMED

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