US v. Roger Allen Austin, Jr.
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:14-cr-00010-JPJ-PMS-14. Copies to all parties and the district court/agency [999727276]. [15-4053]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4053
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROGER ALLEN AUSTIN, JR., a/k/a Fat Rog,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Abingdon.
James P. Jones, District
Judge. (1:14-cr-00010-JPJ-PMS-14)
Submitted:
November 30, 2015
Decided:
December 30, 2015
Before SHEDD, WYNN, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Laura Jill Koenig, KOENIG LAW FIRM, PLLC, Charlottesville,
Virginia,
Charles
Michael
Henter,
HENTERLAW,
PLC,
Charlottesville, Virginia, for Appellant.
Anthony P. Giorno,
United States Attorney, Jean B. Hudson, Assistant United States
Attorney, Charlottesville, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Roger Allen Austin, Jr., appeals his conviction and 121month sentence imposed following his guilty plea to conspiracy
to
possess
with
intent
to
distribute
violation of 21 U.S.C. § 846 (2012).
that
his
guilty
plea
was
not
methamphetamine,
in
On appeal, Austin claims
voluntary
because
the
district
court failed to include in its explanation of the nature of the
charge
against
him
that
he
would
be
held
responsible
sentencing for his coconspirators’ drug activities.
at
Austin also
argues that the district court failed to make particularized
findings as to the scope of the criminal activity to which he
agreed
and
as
to
the
reasonable
coconspirators’ drug activities.
foreseeability
of
his
We affirm.
Because Austin failed to raise either of his arguments in
district court, we review each for plain error.
v.
Aplicano-Oyuela,
792
F.3d
416,
422
(4th
United States
Cir.
2015).
To
establish plain error, Austin must demonstrate that an error
occurred, that the error was plain, and that the error affected
his substantial rights.
Id.
In the guilty plea context, a
defendant can establish the third factor by showing a reasonable
probability that he would not have pled guilty but for the Rule
11 omission.
(4th
Cir.
United States v. Massenburg, 564 F.3d 337, 343
2009).
If
the
three-part
plain
error
test
is
satisfied, we must decide whether to cure the error, and will do
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so only if “the error seriously affects the fairness, integrity
or public reputation of judicial proceedings.”
Aplicano-Oyuela,
792 F.3d at 422 (internal quotation marks omitted).
Prior to accepting a guilty plea, a trial court, through
colloquy, must inform the defendant of, and determine that he
understands,
the
nature
of
the
charge
to
which
the
plea
is
offered, the penalties he faces, and the various rights he is
relinquishing by pleading guilty.
Fed. R. Crim. P. 11(b)(1);
United States v. DeFusco, 949 F.2d 114, 116 (4th Cir. 1991).
The court also must inform a defendant that it will consider any
applicable
departure;
Sentencing
however,
Guidelines
the
court
is
and
not
the
possibility
required
to
inform
of
the
defendant of the applicable sentencing range before accepting a
guilty plea.
118-19.
Fed. R. Crim. P. 11(b)(1)(M); DeFusco, 949 F.2d at
This is because, “[u]nder the Guidelines, the maximum
sentence will never exceed the maximum provided by statute” and
as long as the defendant knows the maximum possible penalty at
the time the guilty plea is offered, Rule 11 has been satisfied.
DeFusco, 949 F.2d at 119.
compliance
with
Rule
11,
In reviewing the district court’s
we
“accord
deference
to
the
trial
court’s decision as to how best to conduct the mandated colloquy
with the defendant.”
Id. at 116.
Informing the defendant of the nature of the charge, “[i]n
most cases, . . . requires the court to recite the elements of
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the offense.”
Cir. 2010).
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United States v. Ferrel, 603 F.3d 758, 762 (10th
The elements of a drug conspiracy are “(1) an
agreement between two or more persons to engage in conduct that
violates a federal drug law; (2) the defendant’s knowledge of
the conspiracy; and (3) the defendant’s knowing and voluntary
participation in the conspiracy.”
F.3d 360, 367 (4th Cir. 2010).
United States v. Green, 599
The amount of drugs involved is
not an element of the offense where, as here, the amount does
not operate to trigger either a statutory mandatory minimum or
an
enhanced
statutory
maximum
penalty.
See
21
U.S.C.
§ 841(b)(1)(C) (2012); cf. Alleyne v. United States, 133 S. Ct.
2151, 2155 (2013) (holding that any fact increasing statutory
mandatory minimum penalty is element of crime); Apprendi v. New
Jersey, 530 U.S. 466, 490 (2000) (holding that, other than prior
conviction,
any
fact
increasing
maximum
statutory
penalty
is
element of crime).
We
conclude
that
the
district
court
adequately
advised
Austin of the nature of the charge at the time he entered his
guilty plea.
Furthermore, by persisting in his guilty plea even
after having been advised of the 20-year maximum penalty, Austin
cannot show a reasonable probability that he would not have pled
guilty had the court advised him that his Sentencing Guidelines
range
would
be
calculated
based
4
in
part
on
the
reasonably
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foreseeable conduct of his coconspirators.
Thus, Austin fails
to establish plain error.
Turning to Austin’s sentencing claim, “the government must
prove the drug quantity attributable to a particular defendant
by a preponderance of the evidence.”
F.3d 431, 441 (4th Cir. 2011).
United States v. Bell, 667
“Under the Guidelines, the drug
quantities that may be attributed to the defendant include the
quantities associated with the defendant’s offense of conviction
and any relevant conduct.”
779
F.3d
250,
255
(4th
United States v. Flores-Alvarado,
Cir.
2015).
“Relevant
conduct
in
conspiracy cases includes all reasonably foreseeable acts and
omissions of others in furtherance of the jointly undertaken
criminal activity.”
U.S.
Sentencing
Id. (internal quotation marks omitted); see
Guidelines
Manual
§ 1B1.3(a)(1)(B)
(2014).
“[I]n order to attribute to a defendant for sentencing purposes
the
acts
of
others
in
jointly-undertaken
criminal
activity,
those acts must have been within the scope of the defendant’s
agreement
and
defendant.”
omitted).
must
have
been
reasonably
Flores-Alvarado,
779
F.3d
foreseeable
at
255
to
the
(emphasis
Accordingly, we require sentencing courts “to make
particularized findings with respect to both the scope of the
defendant’s agreement and the foreseeability of the conduct at
issue.”
Id. at 256 (emphasis, brackets, and internal quotation
marks omitted).
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Generally, we review for clear error “the district court’s
calculation of the quantity of drugs attributable to a defendant
for sentencing purposes.”
United States v. Crawford, 734 F.3d
339, 342 (4th Cir. 2013) (internal quotation marks omitted).
Under
this
finding
standard,
only
if
we
we
are
will
reverse
“left
with
the
the
district
definite
conviction that a mistake has been committed.”
quotation
marks
omitted).
However,
because
court’s
and
firm
Id. (internal
Austin
did
not
object at sentencing to the district court’s findings, we review
only for plain error.
See Aplicano-Oyuela, 792 F.3d at 422.
Our review of the record leads us to conclude that Austin fails
to establish plain error as to the district court’s findings
regarding the scope of the conspiracy and the foreseeability of
Austin’s coconspirators’ actions.
Accordingly, we affirm the district court’s judgment.
dispense
with
contentions
are
oral
argument
adequately
because
presented
in
the
the
facts
We
and
legal
materials
before
this court and argument would not aid the decisional process.
AFFIRMED
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