US v. Herbert DeVaughn, No. 11-5161 (4th Cir. 2013)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-5161 UNITED STATES OF AMERICA, Plaintiff Appellee, v. HERBERT DEVAUGHN, a/k/a WOP, Defendant Appellant. Appeal from the United States District Court for the Northern District of West Virginia, at Clarksburg. Irene M. Keeley, District Judge. (1:10-cr-00078-IMK-1) Argued: May 15, 2013 Decided: June 6, 2013 Before WILKINSON, MOTZ, and SHEDD, Circuit Judges. Affirmed by unpublished opinion. Judge Shedd wrote the opinion, in which Judge Wilkinson and Judge Motz joined. ARGUED: Scott Charlton Brown, SCOTT C. BROWN LAW OFFICE, Wheeling, West Virginia, for Appellant. Zelda Elizabeth Wesley, OFFICE OF THE UNITED STATES ATTORNEY, Clarksburg, West Virginia, for Appellee. ON BRIEF: William J. Ihlenfeld, II, United States Attorney, Wheeling, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. SHEDD, Circuit Judge: Herbert DeVaughn was convicted of 11 counts related to his role in a conspiracy to distribute heroin and his distribution of cocaine base, imprisonment. sentence. He and now he was appeals sentenced both For the following reasons, his to 360 convictions months and his we affirm. I. Because the government prevailed at trial, we review the evidence in the light most favorable to the government. United States v. Jefferson, 674 F.3d 332, 341 n.14 (4th Cir. 2012). From 2007 through 2010, DeVaughn led a conspiracy to distribute heroin. distributed During heroin this and time period, cocaine base, DeVaughn and he personally also used an individual under 18 years of age to assist with his crimes. DeVaughn was indicted and convicted on 11 counts for his involvement in this drug distribution scheme. The court then sentenced him to 360 months imprisonment. district The length of the sentence reflected the district court s determinations that DeVaughn had distributed or conspired to distribute between one and three kilograms of heroin, had been a leader of the criminal activity, and had used an individual under 18 years of age to assist with his crimes. 2 II. DeVaughn challenges his convictions by asserting that the district court erred when it denied his motion to strike two potential jurors. because they DeVaughn moved to strike the potential jurors worked in law enforcement, and, therefore, he believed they could not be impartial. The district court denied the peremptory motion, strike DeVaughn two the and then potential used jurors. We challenges ordinarily to review a district court s denial of a motion to strike potential jurors under an abuse-of-discretion standard. F.2d 219, 222 (4th Cir. 1989). determine because whether the the Supreme Here, however, we need not district Court has Poynter v. Ratcliff, 874 court held abused that a its discretion district court s refusal to strike jurors for cause is not reversible error if the defendant cures it which DeVaughn did here. U.S. 304, 307 (2000). denying the motion, by exercising peremptory challenges, United States v. Martinez-Salazar, 528 Thus, even if the district court erred by the error is not reversible. Id. Accordingly, we affirm DeVaughn s convictions. III. We turn next to DeVaughn s challenge to his sentence. In reviewing DeVaughn s sentence, we apply a deferential abuseof-discretion standard, reviewing factual findings for clear error, and legal conclusions de novo. United States v. Davis, 3 679 F.3d 177, 182 (4th Cir. 2012) (quoting Gall v. United States, 552 U.S. 38, 40 (2007)). Because we find no legal error or clearly erroneous factual determination, we affirm DeVaughn s sentence. A. DeVaughn miscalculated first the contends quantity of that heroin the he district court distributed. The district court determined that DeVaughn distributed between one and three kilograms of heroin, which set the base offense level at 32. U.S.S.G. § 2D1.1(c)(4). The district court based this finding on the testimony of witness Amanda Borror. DeVaughn contends that Borror s testimony was not credible because (1) approximately five years passed between the time she began purchasing heroin from DeVaughn and the time she testified and (2) she was a habitual heroin user, which must have impaired her memory. However, discredit a no witness s authority testimony compels because district of drug courts use or to the passage of time, and, in general, we give great deference to the credibility sentencing. determinations district courts make at United States v. Layton, 564 F.3d 330, 334 (4th Cir. 2009) (internal quotation marks omitted). Thus, we do not believe that the district court s decision to rely upon Borror s testimony rendered its factual finding as to the drug quantity clearly erroneous. 4 B. DeVaughn next contends that the district court erred by enhancing his offense level by four points because of his role as the organizer or leader of a criminal activity that involved five or more sentencing, participants. the district U.S.S.G. court § recited 3B1.1(a). the At factors the Sentencing Guidelines instruct courts to consider in applying this enhancement and determined that DeVaughn was clearly the organizer and the . . . leader in this criminal activity. 564. The district court noted in particular that J.A. DeVaughn recruited accomplices and planned and organized drug sales, both of which are relevant factors under Application Note 4 to U.S.S.G. § 3B1.1(a). On appeal, DeVaughn acknowledges that the evidence supported the district court s factual determinations that he recruited accomplices and planned and organized the drug sales, and he does not contest the district court s conclusion that the criminal activity involved five or more participants. DeVaughn points out that several factors Instead, mentioned in Application Note 4 do not apply to this case and that he did not engage in all types of activity one may expect from the leader of a drug conspiracy, such as renting houses to use for drug distribution, supplying cell phones to assisting subordinates with legal issues. 5 his subordinates, or However, U.S.S.G. § 3B1.1(a) does not indicate that all factors from Application Note 4 must be present or that a defendant must engage in all types of activity associated with being the leader or organizer of criminal activity for the enhancement to apply. We find no basis for adopting such a rule, and we therefore conclude that the district court did not err by applying the enhancement. C. DeVaughn next contends that the district court erred by enhancing his offense level by two points under U.S.S.G. § 3B1.4 for using a minor to assist in his crimes. DeVaughn notes that he was convicted under 21 U.S.C. § 861(a)(1) for using a minor to assist with his crimes, and he contends that it was improper to enhance his offense level under U.S.S.G. § 3B1.4 for the same conduct. Because DeVaughn did not object to the U.S.S.G. § 3B1.4 enhancement at application of sentencing, the we enhancement review for the plain district error. See court s United States v. Wallace, 515 F.3d 327, 331 32 (4th Cir. 2008). To obtain relief under plain-error review, DeVaughn must establish that the district court erred, that the error was plain, and that it affected his substantial rights. United States v. Robinson, 627 F.3d 941, 954 (4th Cir. 2010) (internal quotation marks and alterations omitted). DeVaughn acknowledged at oral argument that the theory he advances here that one may not be 6 convicted under 21 U.S.C. § 861(a)(1) and also have his offense level enhanced under U.S.S.G. §3B1.4 is a novel one. Thus, even if we were to agree with DeVaughn and conclude that the district court erred by allowing the enhancement, we would not conclude that the error was plain. U.S. v. Trejo, 610 F.3d 308, 319 (5th Cir. 2010) ( novel claims and claims that are not entirely clear under the existing case authority may not prevail under plain-error review) (internal quotation marks omitted). Thus, we find no reversible error. IV. For the foregoing reasons, we affirm DeVaughn s conviction and his sentence. AFFIRMED 7
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