US v. Anthony Tatum


UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--granting Motion for rehearing [999863993-2]; denying Motion for leave to file [999746164-2], denying Motion for leave to file [999775994-2]; denying Motion to file supplemental brief(s) [999778646-2]. Originating case number: 8:13-cr-00492-DKC-1. Copies to all parties and the district court/agency [999945489]. Mailed to: Anthony Torell Tatum. [15-4460]

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Appeal: 15-4460 Doc: 73 Filed: 10/12/2016 Pg: 1 of 8 ON REHEARING UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-4460 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. ANTHONY TORELL TATUM, a/k/a Anthony Tatum, a/k/a Brandon Ross, a/k/a Short Dog, Defendant - Appellant. Appeal from the United States District Court for the District of Maryland, at Greenbelt. Deborah K. Chasanow, Senior District Judge. (8:13-cr-00492-DKC-1) Submitted: September 29, 2016 Before DUNCAN Circuit Judge. and FLOYD, Circuit Decided: Judges, October 12, 2016 and DAVIS, Senior Affirmed by unpublished per curiam opinion. Richard A. Finci, Jennifer L. Mayer, HOULON, BERMAN, FINCI, LEVENSTEIN & SKOK, LLC, Greenbelt, Maryland, for Appellant. Rod J. Rosenstein, United States Attorney, Thomas P. Windom, Deborah A. Johnston, Assistant United States Attorneys, Greenbelt, Maryland, for Appellee. Unpublished opinions are not binding precedent in this circuit. Appeal: 15-4460 Doc: 73 Filed: 10/12/2016 Pg: 2 of 8 PER CURIAM: Anthony Torell Tatum appeals his 324-month sentence entered pursuant to his guilty plea to drug conspiracies and a firearm charge. and money laundering On appeal, Tatum contended that the district court erred in calculating the drug quantity attributable to him as at least 150 kilograms of cocaine. affirmed Tatum’s sentence. We Tatum has filed a petition for panel and en banc rehearing, and after consideration of his arguments on rehearing, we conclude that our prior opinion misstated a mathematical calculation. Accordingly, we grant Appellant’s petition for panel rehearing, 1 and having determined that the misstatement in the original opinion had no bearing on our resolution of the ultimate issue, we affirm. Under the Sentencing Guidelines in effect at the time of Tatum’s sentencing, distribute a controlled defendant convicted substances is of conspiring accountable for to all quantities of contraband with which he was directly involved and, in the case of a jointly undertaken criminal activity, all reasonably furtherance foreseeable of the quantities joint criminal of contraband conduct. Guidelines Manual § 1B1.3 cmt. n.2 (2014). 1 that U.S. were in Sentencing The Government must We denied the petition for rehearing en banc by separate order. 2 Appeal: 15-4460 prove Doc: 73 the Filed: 10/12/2016 drug quantity Pg: 3 of 8 attributable to the defendant by a preponderance of the evidence. United States v. Carter, 300 F.3d 415, 425 (4th Cir. 2002). The district court may rely on information in affirmatively unreliable. the shows Id. presentence that the report unless information is the defendant inaccurate or A district court’s findings on drug quantity are generally factual in nature, and therefore we review for clear error. Id. In addition, we may affirm a Guidelines determination for any reason appearing in the record. United States v. Garnett, 243 F.3d 824, 830 (4th Cir. 2001) (holding that appellate courts may “affirm [the] sentence on the basis of ‘any conduct [in the record] that independently and properly should result in an increase in the offense level’”) (citation omitted). Tatum avers that his drug quantity should be limited to the amount to which he pled guilty. attacking the reliability evidence at sentencing. no evidence or and He raises numerous arguments relevance of the Government’s In the district court, Tatum provided argument as to the actual scope of his participation in the drug conspiracy to which he pled guilty; instead, he rested on the Government’s alleged lack of proof and the district court’s alleged failure to properly consider the evidence. 3 Appeal: 15-4460 Doc: 73 Filed: 10/12/2016 Pg: 4 of 8 We conclude that the evidence clearly shows that Tatum was responsible for at least 150 kilograms of cocaine. Further, the evidence is so overwhelming that most of Tatum’s arguments fail to cut to the heart of the matter and just operate to obfuscate the issue. Specifically, Tatum admitted in the statement of facts attached to his plea agreement that over $90,000 of cash deposits in the bank accounts of his businesses were “virtually all” drug proceeds. 2 In addition, Tatum admitted that, “[i]n addition,” he used drug proceeds of $17,000 (plus the cost of a 2013 Volvo) “expensive to purchase jewelry,” cars. 3 including He also men’s admitted watches, to with buying drug proceeds. The showed evidence that, from totaled $260,000. presented just one by the store, Government Tatum’s at watch sentencing purchases Other seized jewelry and designer clothes were appraised at over $360,000. In addition, the case agent averred that Tatum’s cash deposits from 2009 until 2011 were 2 In his petition for rehearing, Tatum contends that “money order” deposits and “payment” deposits are not part of his admission that “virtually all” of the “cash deposits” were drug proceeds. We need not rule on this issue and, instead, have omitted any funds in Tatum’s admission that were not clearly stated to be “cash deposits.” 3 Tatum also admitted to purchasing a $60,000 Land Rover in 2011, although the statement of facts does not specifically identify those funds as drug proceeds. 4 Appeal: 15-4460 Doc: 73 Filed: 10/12/2016 Pg: 5 of 8 $650,000, the “vast majority” of which was drug proceeds. 4 Thus, even recognizing some double counting and excluding the amounts contested in Tatum’s rehearing combined with record purchases with and petition, evidence, deposits of Tatum’s easily drug show admissions, that proceeds were Tatum’s at least $750,000. Tatum contends that his businesses were legitimate and ongoing, even though “at least a part” of the cash deposits were drug proceeds. Thus, he claims that many of his purchases and deposits were made with legitimate funds. In support, Tatum states that one of his businesses reported $200,000 in income on its 2012 tax returns and that an investigator submitted evidence that the same business was a legitimate business. However, this evidence only concerns one of Tatum’s businesses and does not call into question the nature of his other businesses. Moreover, there is no evidence in the record that the $200,000 income reported was actually traceable to legitimate income, and the investigator could not locate records sufficient to provide an estimate as to the company’s income. agent averred Tatum’s bank that $650,000 accounts were in not 4 cash In addition, the case deposits related to the across 22 of operation of While these dates precede the dates in the indictment, we find no error in including these drug proceeds as relevant conduct. 5 Appeal: 15-4460 Doc: 73 legitimate Filed: 10/12/2016 businesses and Pg: 6 of 8 that the “vast majority” of the “business” expenses were personal expenditures. Thus, even if some accounts portion of the funds in Tatum’s bank were legitimate, his admissions and the other evidence of record show clearly at least $750,000 of drug proceeds attributable to Tatum. According to the affidavit of the case agent, distribution of a kilogram of cocaine nets between $1000 and $5000. 5 Thus, even using the most conservative calculations, the drug proceeds described above and supported by Tatum’s admissions, as well as the record evidence, easily represent more than 150 kilograms of cocaine. Notably, this extremely conservative calculation does not even consider the wealth of other evidence of drug quantity, including the cocaine seized during the investigation, any other “reasonably foreseeable” actions by any members of the conspiracy that did not directly profit Tatum, and the fact that the evidence could support a finding that $750,000 converted to 750 kilograms of cocaine ($1000 from each kilogram). 5 As such, Tatum also contends that the Government failed to have an expert testify as to the proper conversion of cash into cocaine amounts. To the contrary, however, the Government presented the affidavit of the case agent, which provided a range of conversion rates, the most conservative of which still shows that Tatum was responsible for over 150 kilograms of cocaine. Tatum does not challenge the agent’s testimony of pricing and profits or provide any evidence of his own estimates. 6 Appeal: 15-4460 Doc: 73 Filed: 10/12/2016 Pg: 7 of 8 we find that the district court’s conclusions regarding drug quantity were not clear error and were well-supported by the record. Tatum’s other arguments are nearly wholly irrelevant given these findings. to make Tatum contends that the district court failed particularized findings regarding the conspiracy and the quantity of cocaine involved. scope of his The court also allegedly failed to make a finding regarding how much of the coconspirators’ Tatum also conduct challenges was the reasonably case information from informants. are insufficiently challenge the identified. agent’s to statements Tatum. regarding Tatum alleges that the statements corroborated evidence foreseeable given and that that he was not the informants able were to not Tatum also asserts that certain cocaine amounts and cash (not his bank accounts) were never tied to him and that the district court’s conclusions were entirely speculative. As discussed above, however, even removing much of this evidence, the 150-kilogram threshold is easily obtained. As such, any district court error in these regards would not render the drug amount clearly erroneous, against Tatum. Accordingly, given we the will overwhelming not address evidence each issue separately. Tatum also has filed several pro se supplemental briefs. We deny his motions to file these briefs. 7 See United States v. Appeal: 15-4460 Doc: 73 Penniegraft, Filed: 10/12/2016 641 F.3d 566, Pg: 8 of 8 569 n.1 (4th Cir. 2011) (denying motion to file pro se supplemental brief where appellant had counsel and appeal not filed pursuant to Anders v. California, 386 U.S. 738 (1967)); see also Myers v. Johnson, 76 F.3d 1330, 1335 (5th Cir. 1996) (“By accepting the assistance of counsel the criminal appellant waives his right to present pro se briefs on direct appeal.”). We affirm Tatum’s sentence. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. AFFIRMED 8

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