US v. Brandon Barnette, No. 13-4084 (4th Cir. 2013)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4084 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. BRANDON ANTOWINE BARNETTE, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Frank D. Whitney, Chief District Judge. (3:12-cr-00020-FDW-1) Submitted: August 14, 2013 Decided: August 27, 2013 Before DAVIS, KEENAN, and THACKER, Circuit Judges. Affirmed by unpublished per curiam opinion. Roderick M. Wright, Jr., WRIGHT LAW FIRM OF CHARLOTTE, PLLC, Charlotte, North Carolina, for Appellant. Anne M. Tompkins, United States Attorney, Melissa L. Rikard, Assistant United States Attorney, Charlotte, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Brandon Antowine thirty-seven-month sentence Barnette imposed appeals following his his guilty plea pursuant to a plea agreement to conspiracy to distribute and possess with intent 21 U.S.C.A. to distribute § 841(b)(1)(A) 21 U.S.C. § 846 (2006). (West cocaine, 2006 violation Supp. & in 2013) of and We affirm. The presentence report ( PSR ) calculated Barnette s Guidelines range under ( USSG ) (2012) at imprisonment. variance the the Sentencing thirty-seven Barnette from U.S. moved Guidelines for to a range, Guidelines forty-six downward arguing Manual months departure that he or should receive a ten-level reduction to his base offense level under USSG § 2D1.1 level twenty-six reported to interview. that because the it based law made increased entirely enforcement on from the officials level during a to quantity cocaine sixteen he post-arrest The Government opposed Barnette s request, arguing PSR had properly attributable to him. also was an oral calculated the drug quantity As part of its opposition, the Government evidentiary information from the case Barnette s co-conspirators proffer based on agent establishing had informed law investigative that one of enforcement officials of Barnette s involvement in the conspiracy prior to Barnette s arrest. The district court accepted the Government s 2 proffer and Guidelines adopted the range. On PSR s calculation appeal, Barnette of Barnette s argues that the Government committed reversible misconduct by failing to file a written response to his motion for a downward departure or variance and by opposing the motion with the oral evidentiary proffer. To succeed on a claim of prosecutorial misconduct, a defendant must prove that the prosecution engaged in improper conduct and that such conduct prejudiced his substantial rights so as to deny him a fair proceeding. 491 F.3d 178, 191 (4th Cir. 2007). raise his claim of prosecutorial United States v. Allen, Because Barnette did not misconduct in the district court, we review it for plain error, affirming unless an error was made, the error was plain, and the error affected Barnette s substantial rights. United States v. Alerre, 430 F.3d 681, 689 (4th Cir. 2005). We parties conclude briefs misconduct. that after review the record Government the of did not and engage the in Evidentiary proffers may be used in the calculation of the drug quantity attributable to a defendant for sentencing purposes, accord United States v. Young, 609 F.3d 348, 358-59 (4th Cir. 2010) (vacating sentence and remanding for resentencing where the district court failed to recognize its authority to consider the drug 3 quantity established by the Government s evidentiary proffer introduced at sentencing), and the plea agreement in this case provided that the parties could argue their respective positions variances from the Guidelines range. regarding departures or Barnette does not point to anything in the record that would support the conclusion that the Government was required to respond to his motion in writing. The plea agreement also permitted the Government to inform the district court of all facts pertinent to the sentencing process, and Barnette does not contend that the oral proffer was not pertinent to his sentencing or point to anything in the record establishing that the proffer was inaccurate. * Barnette fails to establish that any plain error was committed in the manner in which the Government responded to his motion for a downward departure or variance. affirm the district court s judgment. Accordingly, we 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 * Although Barnette summarily asserts that the case agent made blatant misrepresentations, he does not point to anything in the record supporting this assertion. 4
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