United States v. Fruikwan Stewart ( 2021 )


Menu:
  •                                      UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 19-4716
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.
    FRUIKWAN DION-RASHAR STEWART, a/k/a Taliban,
    Defendant - Appellant.
    Appeal from the United States District Court for the Eastern District of North Carolina, at
    Raleigh. Louise W. Flanagan, District Judge. (5:19-cr-00097-FL-1)
    Submitted: May 3, 2021                                            Decided: May 14, 2021
    Before KING and RICHARDSON, Circuit Judges, and TRAXLER, Senior Circuit Judge.
    Affirmed by unpublished per curiam opinion.
    Charles M. Henter, HENTERLAW, PLC, Charlottesville, Virginia, for Appellant. Robert
    J. Higdon, Jr., United States Attorney, Jennifer P. May-Parker, Assistant United States
    Attorney, Thomas Crosby, Assistant United States Attorney, OFFICE OF THE UNITED
    STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    Fruikwan Dion-Rashar Stewart appeals his 84-month sentence imposed following
    his guilty plea to possession with intent to distribute a quantity of cocaine base, in violation
    of 21 U.S.C. § 841(a)(1), (b)(1)(C). On appeal, Stewart contends that the district court
    clearly erred in calculating the quantity of drugs attributable to him. Stewart further argues
    that the court violated his right to due process by utilizing a preponderance of the evidence
    standard in considering the conduct relevant to the calculation of the drug weight. * We
    affirm.
    “We review the district court’s calculation of the quantity of drugs attributable to a
    defendant for sentencing purposes for clear error.” United States v. Williamson, 
    953 F.3d 264
    , 272 (4th Cir.) (internal quotation marks omitted), cert. denied, 
    141 S. Ct. 638
    (2020).
    Under this standard, we will not reverse unless “we are left with the definite and firm
    conviction that a mistake has been committed.” United States v. Crawford, 
    734 F.3d 339
    ,
    342 (4th Cir. 2013) (internal quotation marks omitted).             “Under the [Sentencing]
    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.” United
    States v. Flores-Alvarado, 
    779 F.3d 250
    , 255 (4th Cir. 2015). Relevant conduct includes
    Stewart also briefly argues that the district court did not adequately explain the
    *
    sentence imposed. To the extent Stewart attempts to challenge the procedural
    reasonableness of his sentence beyond his arguments relating to the calculation of the drug
    weight properly attributable to him, he has waived this argument by failing to explain or
    develop it. See Grayson O Co. v. Agadir Int’l LLC, 
    856 F.3d 307
    , 316 (4th Cir. 2017) (“A
    party waives an argument by failing to present it in its opening brief or by failing to develop
    its argument—even if its brief takes a passing shot at the issue.” (brackets and internal
    quotation marks omitted)).
    2
    all “acts and omissions . . . that occurred during the commission of the offense of
    conviction, in preparation for that offense, or in the course of attempting to avoid detection
    or responsibility for that offense.” U.S. Sentencing Guidelines Manual § 1B1.3(a)(1)(A)
    (2018). For some offenses, like the drug offense for which Stewart was convicted, relevant
    conduct also includes “all acts and omissions . . . that were part of the same course of
    conduct or common scheme or plan as the offense of conviction.” USSG § 1B1.3(a)(2).
    This “often includes a broader range of conduct than the conduct underlying the offense of
    conviction.” United States v. Young, 
    609 F.3d 348
    , 358 (4th Cir. 2010).
    At Stewart’s sentencing hearing, the district court heard testimony from the
    Government’s witness about several different drug transactions that Stewart conducted
    between May 2018 and the January 2019 transactions underlying Stewart’s conviction.
    Upon review of the record, the evidence upon which the probation officer calculated the
    drug quantity attributable to Stewart, and the parties’ arguments, we find no clear error.
    We similarly find no error in the court’s use of a preponderance of the evidence standard
    in evaluating this evidence. See United States v. Benkahla, 
    530 F.3d 300
    , 312 (4th Cir.
    2008) (“Sentencing judges may find facts relevant to determining a Guidelines range by a
    preponderance of the evidence, so long as that Guidelines sentence is treated as advisory
    and falls within the statutory maximum . . . .”).
    Accordingly, we affirm the district court’s judgment. 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
    3
    

Document Info

Docket Number: 19-4716

Filed Date: 5/14/2021

Precedential Status: Non-Precedential

Modified Date: 5/14/2021