US v. Tamara Williams-Kelly

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--granting Motion to expedite decision [1000002564-2] Originating case number: 3:16-cr-00036-FDW-DSC-1 Copies to all parties and the district court/agency. [1000018447]. [16-4487]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-4487

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
TAMARA WILLIAMS-KELLY,
Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.
Frank D. Whitney,
Chief District Judge. (3:16-cr-00036-FDW-DSC-1)

Submitted:

January 31, 2017

Decided:

February 7, 2017

Before WILKINSON, MOTZ, and DIAZ, Circuit Judges.

Affirmed by unpublished per curiam opinion.

John Parke Davis, Acting Executive Director, Ann L. Hester,
FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte,
North Carolina, for Appellant. Jill Westmoreland Rose, United
States Attorney, Amy E. Ray, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Tamara

Williams-Kelly

pleaded

guilty

to

conspiracy

to

distribute and possess with intent to distribute cocaine, in
violation of 21 U.S.C. § 846 (2012); possession with intent to
distribute cocaine, in violation of 21 U.S.C. § 841(a) (2012);
conspiracy

to

import

cocaine

into

the

United

States,

in

violation of 21 U.S.C. §§ 952(a), 963 (2012); and importation of
cocaine

into

§§ 952(a),

the

960(a)

United

States,

(2012).

in

The

violation

district

of

21

court

U.S.C.

sentenced

Williams-Kelly to 30 months of imprisonment and she now appeals.
For the reasons that follow, we affirm.
Williams-Kelly first challenges the district court’s denial
of her request for a mitigating role reduction in her offense
level.

In reviewing the district court’s calculations under the

Guidelines, “we review the district court’s legal conclusions de
novo

and

its

factual

findings

for

clear

error.”

United

States v. Manigan, 592 F.3d 621, 626 (4th Cir. 2010) (internal
quotation marks omitted).

We will “find clear error only if, on

the entire evidence, we are left with the definite and firm
conviction

that

a

mistake

has

been

committed.”

Id.

at

631

(internal quotation marks omitted).
“Section 3B1.2 of the Sentencing Guidelines provides for
various

reductions

to

a

defendant’s

offense

level

if

the

defendant played a part in committing the offense that makes
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[her] substantially less culpable than the average participant”
in the criminal activity.

United States v. Powell, 680 F.3d

350, 358 (4th Cir. 2012) (internal quotation marks omitted).

A

defendant may receive a four-level reduction in offense level if
she

was

a

two-level

minimal
reduction

participant
if

she

in

was

the

a

criminal

minor

activity,

participant,

and

a
a

three-level reduction if her participation fell between minimal
and minor.

U.S. Sentencing Guidelines Manual § 3B1.2 (2016).

minimal

participant

plainly

among

offense.

the

is

one

least

who

plays

culpable

USSG § 3B1.2 cmt. n.4.

of

a

minimal

those

role

involved

A

and
in

is
the

A minor participant is less

culpable than other participants in the criminal activity, while
not among the least culpable.

USSG § 3B1.2 cmt. n.5.

The Guidelines commentary specifies that the inquiry should
be fact-specific and based on the totality of the circumstances.
USSG

§ 3B1.2

non-exhaustive

cmt.
list

n.3(C).
of

The

factors

commentary
to

consider

also
in

provides

determining

whether to apply a mitigating role reduction, including:
(i) the degree to which the defendant understood the
scope and structure of the criminal activity;
(ii) the degree to which the defendant participated in
planning or organizing the criminal activity;
(iii) the degree to which the defendant exercised
decision-making authority or influenced the exercise
of decision-making authority;
(iv) the nature
participation in

and
the

extent of the defendant’s
commission of the criminal
3

a

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activity, including the acts the defendant performed
and the responsibility and discretion the defendant
had in performing those acts; [and]
(v) the degree to which the defendant stood to benefit
from the criminal activity.
Id.

A defendant who did not have a proprietary interest in the

criminal activity but is simply paid to perform certain tasks
should be considered for a reduction, and “[t]he fact that a
defendant performs an essential or indispensable role in the
criminal activity is not determinative.”
The

defendant

preponderance

of

bears
the

the

burden

of

that

she

evidence

mitigating role adjustment.

Id.
demonstrating
is

by
to

entitled

a
a

Powell, 680 F.3d at 358-59.

We

have reviewed the record and the relevant legal authorities and
conclude

that

the

district

court

did

not

err

in

denying

Williams-Kelly’s request for a mitigating role reduction.
Williams-Kelly

also

seeks

on

appeal

to

challenge

the

district court’s denial of a downward departure for aberrant
behavior

under

USSG

§ 5K2.20.

“We

are

unable,

however,

to

review a sentencing court’s decision not to depart unless the
court mistakenly believed that it lacked the authority to do
so.”
2014).

United States v. Louthian, 756 F.3d 295, 306 (4th Cir.
Here,

misapprehend

it
its

is

clear

authority

that
to

4

the

district

grant

such

court
a

did

not

departure.

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Therefore, Williams-Kelly “cannot contest on appeal the court’s
failure to depart downward.”

Id. at 306.

Accordingly, we affirm the judgment of the district court.
We grant Williams-Kelly’s motion to expedite the decision to the
extent

that

the

appeal

has

been

decided

possible given this court’s caseload.

as

expeditiously

as

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 in the decisional process.
AFFIRMED

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