US v. Antonio Whitehead, No. 11-4045 (4th Cir. 2011)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4045 UNITED STATES OF AMERICA, Plaintiff Appellee, v. ANTONIO J. WHITEHEAD, a/k/a T.O., Defendant - Appellant. Appeal from the United States District Court for the Southern District of West Virginia, at Huntington. Robert C. Chambers, District Judge. (3:09-cr-00099-4) Submitted: September 16, 2011 Decided: October 7, 2011 Before WILKINSON, WYNN, and DIAZ, Circuit Judges. Affirmed by unpublished per curiam opinion. Sebastian M. Joy, CURTIS LEGAL SERVICES, PSC, Ashland, Kentucky, for Appellant. R. Booth Goodwin II, United States Attorney, J. Christopher Krivonyak, Assistant United States Attorney, Rosemary Logan, Third Year Law Student, Charleston, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Antonio J. Whitehead appeals from the 108-month sentence imposed pursuant to his guilty plea to conspiracy to possess with intent to distribute cocaine base. challenges the district court s denial of On appeal, he his request for a minor role reduction and the court s enhancement of his advisory Guidelines range for possession of a firearm. Whitehead first asserts that, We affirm. since he was not a manager or supervisor, he was entitled to a minor participant role reduction. Further, he claims that his conduct was not essential to the conspiracy because he joined the conspiracy after it began. A defendant who is only a minor participant in a criminal activity may have his offense level reduced by two levels. U.S. Sentencing Guidelines Manual § 3B1.2(b) (2010). This applies to a defendant who is substantially less culpable than the average participant, described as minimal. n.5). but whose role could not be USSG § 3B1.2(b), comment. (n. 3(A) & In deciding whether the defendant played a minor role, the critical inquiry is thus not just whether the defendant has done fewer bad acts than his co-defendants, but whether the defendant s conduct is material or essential to committing the offense. 2001). United States v. Pratt, 239 F.3d 640, 646 (4th Cir. The defendant has the 2 burden of showing by a preponderance of the evidence that he played a minor role in the offense. 1999). United States v. Akinkoye, 185 F.3d 192, 202 (4th Cir. When reviewing the district court s application of the Sentencing error. Guidelines, we review findings of fact for clear United States v. Green, 436 F.3d 449, 456 (4th Cir. 2006). Whitehead stipulated that he sold cocaine base as part of his participation in the conspiracy. As such, Whitehead s conduct does not warrant a reduction under USSG § 3B1.2. See United States v. Brooks, 957 F.2d 1138, 1149 (4th Cir. 1992) (A seller holds a central position in a drug distribution conspiracy, even if he participated in the conspiracy for a relatively brief period of time.); see also United States v. Glasco, 917 F.2d 797, 800 (4th Cir. 1990) (holding that an actual seller of drugs is not entitled to role reduction); United States v. Daughtrey, 874 F.2d 213, 218-19 (4th Cir. 1989) (recognizing that simply because a criminal conspiracy participant does not conceive of the conspiracy does not mean that he should be assigned a minor role adjustment if he helped to implement it). Moreover, the mere fact that Whitehead was not a manager or supervisor does not entitle him to a mitigating role reduction. Accordingly, this claim is without merit. Whitehead next argues that the firearm for which he was found responsible was not connected to the drugs found on 3 his person and, even if it was, neither the drugs firearm were connected to the subject conspiracy. nor the The question of whether a defendant possessed a firearm during the commission of a drug conspiracy is a factual determination subject to the clearly erroneous standard. United State v. Rusher, 966 F.2d 868, 880 (4th Cir. 1992). The Guidelines instruct that [t]he enhancement for weapon possession reflects the increased danger of violence when drug traffickers applied if improbable USSG § the that 2D1.1 purposes of possess weapon the was weapon comment. the weapons. present, was (n.3). enhancement The adjustment unless connected We when have a it with found handgun should is the clearly offense. possession and be drugs for were located in the same house, United States v. Nelson, 6 F.3d 1049, 1056 (4th Cir. 1993), overruled on other grounds by Bailey v. United States, 516 U.S. 137 (1995); and where a handgun and drugs were found in the same briefcase, Rusher, 966 F.2d at 880-81. (4th Cir. See also United States v. Harris, 128 F.3d 850, 853 1997) (unloaded firearm found in same dresser as drugs). In this case, Whitehead was found in possession of a firearm, as well as a large quantity of drugs and cash. fact, all of the items were found on his person. In There was no dispute that Whitehead and his co-conspirators sold drugs during 4 the course of the conspiracy and that the subject arrest was during the time circumstantial defendant to report improbable that activities, the enhancement. of evidence fails presentence period the stipulated supports produce is the the evidence incorrect firearm district or was court to conspiracy. When enhancement and the show that the either that it was clearly connected to the drug entitled to apply the is See United States v. Manigan, 592 F.3d 621, 632 (4th Cir. 2010). Given the proximity of the drugs and the loaded gun and the timing of the criminal behavior, the district court s conclusions that the possession of the firearm and drugs were related and were part of Whitehead s involvement in the subject conspiracy were not clearly erroneous. Accordingly, dispense with oral we affirm argument Whitehead s because the sentence. facts and We legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 5
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