US v. Anthony Tatum
Filing
Case reopened upon grant of rehearing. Originating case number: 8:13-cr-00492-DKC-1. [15-4460]
Appeal: 15-4460
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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UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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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
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prove
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the
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drug
quantity
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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
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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
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$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
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legitimate
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businesses
and
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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
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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.
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Penniegraft,
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641
F.3d
566,
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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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