US v. Kevin Robinson, No. 13-4260 (4th Cir. 2013)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4260 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. KEVIN LUTHOR ROBINSON, a/k/a KK, Defendant - Appellant. Appeal from the United States District Court for the Southern District of West Virginia, at Huntington. Robert C. Chambers, Chief District Judge. (3:12-cr-00227-1) Submitted: September 30, 2013 Decided: October 4, 2013 Before WYNN, FLOYD, and THACKER, Circuit Judges. Affirmed by unpublished per curiam opinion. W. Michael Frazier, FRAZIER & OXLEY, L.C., Huntington, West Virginia, for Appellant. R. Booth Goodwin II, United States Attorney, Joseph F. Adams, Assistant United States Attorney, Huntington, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Kevin Luthor Robinson pled guilty pursuant to a plea agreement to conspiracy to distribute a quantity of heroin and twenty-eight 21 U.S.C. grams § 846 or more (2006). * of cocaine The base, district in violation court of calculated Robinson s Guidelines range under the U.S. Sentencing Guidelines Manual ( USSG ) (2012) at 108 to 135 months imprisonment and sentenced him to 135 months imprisonment. Robinson appeals, challenging the district court s drug quantity determination and its application of the two-level enhancement § 3B1.1(c) for his aggravating role in the offense. We under a review deferential Robinson s sentence abuse-of-discretion for under We affirm. reasonableness standard. United States, 552 U.S. 38, 41, 51 (2007). USSG Gall v. This review entails appellate consideration of both the procedural and substantive reasonableness of the sentence. procedural court range. reasonableness, properly calculated we the Id. at 51. consider whether defendant s In determining the advisory district Guidelines Id. Robinson argues first that the district erred in its calculation of the drug quantity * it attributed to him. Robinson originally proceeded to a trial on a third superseding indictment charging him with multiple heroin and cocaine base offenses but pled guilty on the third day of trial. 2 We review the district court s drug quantity finding underlying its calculation United States of v. the base Kellam, offense 568 F.3d level 125, for 147 clear error. Cir. 2009). (4th This deferential standard of review requires reversal only if this court, upon review of the record as a whole, is left with the definite committed. and firm Easley conviction Cromartie, v. that 532 a mistake U.S. 234, has 242 been (2001) (internal quotation marks omitted). After review of the record, we conclude that the district court s determination that a marijuana equivalency of at least 700 but less than 1000 kilograms is supported by Robinson s admissions at the guilty plea hearing and testimony and evidence adduced at Robinson s trial and sentencing that the district court credited. We thus discern no clear error in the district quantity court s drug calculation. See USSG § 1B1.3(a)(2) (stating that a district court must consider all acts and omissions . . . that were part of the same course of conduct or common scheme or plan as the offense of conviction in calculating relevant conduct); Kellam, 568 F.3d at 147 (noting that the district court s drug quantity finding must be supported by a preponderance of the evidence and concluding that testimony received at trial and sentencing supported the court s finding); United States v. Randall, 171 F.3d 195, 210-11 (4th Cir. 1999) (explaining that a defendant bears the burden of 3 establishing that information the district court relied on in calculating the relevant drug quantity is incorrect); see also United States v. Lamarr, 75 F.3d 964, 972-73 (4th Cir. 1996) (concluding that approximation of drug quantity for sentencing not clearly erroneous if supported by competent record evidence). Robinson application of also the challenges two-level role in the offense. the district enhancement for his court s aggravating Section 3B1.1 of the Guidelines provides a range of adjustments to increase [a defendant s] offense level based upon the size of a criminal organization . . . and the degree to which the defendant was responsible for committing the offense. USSG § 3B1.1, cmt. background. Under USSG § 3B1.1(c), a defendant qualifies for a two-level enhancement to his offense level if he was an organizer, leader, manager, or supervisor in any criminal activity. Application of the enhancement is proper when the defendant exercises leadership over only one participant, as long as some control is exercised. United States v. Rashwan, 328 F.3d 160, 166 (4th Cir. 2003). We conclude after review of the record that the district court s application of the two-level enhancement under USSG § 3B1.1(c) district court is amply credited supported establishing by trial that testimony Robinson the exercised control over other participants in the conspiracy by directing 4 the terms of their drug sales, arranging the logistics of drug delivery, and advising obtaining materials to one co-conspirator convert cocaine on into methods cocaine for base. Accordingly, we discern no clear error in the district court s application of the enhancement. (stating standard of See Kellam, 568 F.3d at 147-48 review and affirming application of enhancement under USSG § 3B1.1(b) where defendant controlled the drug buys of co-conspirators and directed the terms of payment); United States v. Bartley, 230 F.3d 667, 673-74 (4th Cir. 2000) (affirming application of § 3B1.1(b) enhancement where the defendant directed the activities of street-level drug dealers and advised them on drug sales techniques, set prices and payment terms, arranged logistics of delivery, and directed the mailing and transport of drugs). We therefore We dispense with contentions are oral affirm the argument adequately district because presented in court s judgment. the facts and the materials legal before this court and argument would not aid the decisional process. AFFIRMED 5
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