US v. Tamara Williams-Kelly


UNPUBLISHED PER CURIAM OPINION filed.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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Appeal: 16-4487 Doc: 33 Filed: 02/07/2017 Pg: 1 of 5 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 16-4487 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. TAMARA WILLIAMS-KELLY, Defendant -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 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit. Appeal: 16-4487 Doc: 33 Filed: 02/07/2017 Pg: 2 of 5 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 2 Appeal: 16-4487 Doc: 33 Filed: 02/07/2017 Pg: 3 of 5 [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 Appeal: 16-4487 Doc: 33 Filed: 02/07/2017 Pg: 4 of 5 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. Appeal: 16-4487 Doc: 33 Filed: 02/07/2017 Pg: 5 of 5 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 5

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