US v. Roger Austin, Jr., No. 15-4053 (4th Cir. 2015)

Annotate this Case

Download PDF

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-4053 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ROGER ALLEN AUSTIN, JR., a/k/a Fat Rog, Defendant - Appellant. Appeal from the United States District Court for the Western District of Virginia, at Abingdon. James P. Jones, District Judge. (1:14-cr-00010-JPJ-PMS-14) Submitted: November 30, 2015 Decided: December 30, 2015 Before SHEDD, WYNN, and FLOYD, Circuit Judges. Affirmed by unpublished per curiam opinion. Laura Jill Koenig, KOENIG LAW FIRM, PLLC, Charlottesville, Virginia, Charles Michael Henter, HENTERLAW, PLC, Charlottesville, Virginia, for Appellant. Anthony P. Giorno, United States Attorney, Jean B. Hudson, Assistant United States Attorney, Charlottesville, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Roger Allen Austin, Jr., appeals his conviction and 121month sentence imposed following his guilty plea to conspiracy to possess with intent to distribute violation of 21 U.S.C. § 846 (2012). that his guilty plea was not methamphetamine, in On appeal, Austin claims voluntary because the district court failed to include in its explanation of the nature of the charge against him that he would be held responsible sentencing for his coconspirators’ drug activities. at Austin also argues that the district court failed to make particularized findings as to the scope of the criminal activity to which he agreed and as to the reasonable coconspirators’ drug activities. foreseeability of his We affirm. Because Austin failed to raise either of his arguments in district court, we review each for plain error. v. Aplicano-Oyuela, 792 F.3d 416, 422 (4th United States Cir. 2015). To establish plain error, Austin must demonstrate that an error occurred, that the error was plain, and that the error affected his substantial rights. Id. In the guilty plea context, a defendant can establish the third factor by showing a reasonable probability that he would not have pled guilty but for the Rule 11 omission. (4th Cir. United States v. Massenburg, 564 F.3d 337, 343 2009). If the three-part plain error test is satisfied, we must decide whether to cure the error, and will do 2 so only if “the error seriously affects the fairness, integrity or public reputation of judicial proceedings.” Aplicano-Oyuela, 792 F.3d at 422 (internal quotation marks omitted). Prior to accepting a guilty plea, a trial court, through colloquy, must inform the defendant of, and determine that he understands, the nature of the charge to which the plea is offered, the penalties he faces, and the various rights he is relinquishing by pleading guilty. Fed. R. Crim. P. 11(b)(1); United States v. DeFusco, 949 F.2d 114, 116 (4th Cir. 1991). The court also must inform a defendant that it will consider any applicable departure; Sentencing however, Guidelines the court is and not the possibility required to inform of the defendant of the applicable sentencing range before accepting a guilty plea. 118-19. Fed. R. Crim. P. 11(b)(1)(M); DeFusco, 949 F.2d at This is because, “[u]nder the Guidelines, the maximum sentence will never exceed the maximum provided by statute” and as long as the defendant knows the maximum possible penalty at the time the guilty plea is offered, Rule 11 has been satisfied. DeFusco, 949 F.2d at 119. compliance with Rule 11, In reviewing the district court’s we “accord deference to the trial court’s decision as to how best to conduct the mandated colloquy with the defendant.” Id. at 116. Informing the defendant of the nature of the charge, “[i]n most cases, . . . requires the court to recite the elements of 3 the offense.” Cir. 2010). United States v. Ferrel, 603 F.3d 758, 762 (10th The elements of a drug conspiracy are “(1) an agreement between two or more persons to engage in conduct that violates a federal drug law; (2) the defendant’s knowledge of the conspiracy; and (3) the defendant’s knowing and voluntary participation in the conspiracy.” F.3d 360, 367 (4th Cir. 2010). United States v. Green, 599 The amount of drugs involved is not an element of the offense where, as here, the amount does not operate to trigger either a statutory mandatory minimum or an enhanced statutory maximum penalty. See 21 U.S.C. § 841(b)(1)(C) (2012); cf. Alleyne v. United States, 133 S. Ct. 2151, 2155 (2013) (holding that any fact increasing statutory mandatory minimum penalty is element of crime); Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) (holding that, other than prior conviction, any fact increasing maximum statutory penalty is element of crime). We conclude that the district court adequately advised Austin of the nature of the charge at the time he entered his guilty plea. Furthermore, by persisting in his guilty plea even after having been advised of the 20-year maximum penalty, Austin cannot show a reasonable probability that he would not have pled guilty had the court advised him that his Sentencing Guidelines range would be calculated based 4 in part on the reasonably foreseeable conduct of his coconspirators. Thus, Austin fails to establish plain error. Turning to Austin’s sentencing claim, “the government must prove the drug quantity attributable to a particular defendant by a preponderance of the evidence.” F.3d 431, 441 (4th Cir. 2011). United States v. Bell, 667 “Under the Guidelines, the drug quantities that may be attributed to the defendant include the quantities associated with the defendant’s offense of conviction and any relevant conduct.” 779 F.3d 250, 255 (4th United States v. Flores-Alvarado, Cir. 2015). “Relevant conduct in conspiracy cases includes all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity.” U.S. Sentencing Id. (internal quotation marks omitted); see Guidelines Manual § 1B1.3(a)(1)(B) (2014). “[I]n order to attribute to a defendant for sentencing purposes the acts of others in jointly-undertaken criminal activity, those acts must have been within the scope of the defendant’s agreement and defendant.” omitted). must have been reasonably Flores-Alvarado, 779 F.3d foreseeable at 255 to the (emphasis Accordingly, we require sentencing courts “to make particularized findings with respect to both the scope of the defendant’s agreement and the foreseeability of the conduct at issue.” Id. at 256 (emphasis, brackets, and internal quotation marks omitted). 5 Generally, we review for clear error “the district court’s calculation of the quantity of drugs attributable to a defendant for sentencing purposes.” United States v. Crawford, 734 F.3d 339, 342 (4th Cir. 2013) (internal quotation marks omitted). Under this finding standard, only if we we are will reverse “left with the the district definite conviction that a mistake has been committed.” quotation marks omitted). However, because court’s and firm Id. (internal Austin did not object at sentencing to the district court’s findings, we review only for plain error. See Aplicano-Oyuela, 792 F.3d at 422. Our review of the record leads us to conclude that Austin fails to establish plain error as to the district court’s findings regarding the scope of the conspiracy and the foreseeability of Austin’s coconspirators’ actions. Accordingly, we affirm the district court’s judgment. dispense with contentions are oral argument adequately because presented in the the facts We and legal materials before this court and argument would not aid the decisional process. AFFIRMED 6

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.