United States v. Beverly Baker , 601 F. App'x 231 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4720
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
BEVERLY ALLEN BAKER,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
Chief District Judge. (5:11-cr-00237-D-1)
Submitted: April 30, 2015 Decided: May 6, 2015
Before GREGORY and WYNN, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Marilyn G. Ozer, MASSENGALE & OZER, Chapel Hill, North Carolina,
for Appellant. Thomas G. Walker, United States Attorney,
Jennifer P. May-Parker, Yvonne V. Watford-McKinney, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Beverly Allen Baker was convicted by a jury of conspiracy
to distribute 280 grams or more of cocaine base (crack) in
violation of 21 U.S.C. § 846 (2012), and nine counts of crack
distribution, in violation of 21 U.S.C. § 841 (2012). After a
remand of her sentence, the district court resentenced Baker to
360 months of imprisonment. Baker appeals, contending that her
sentence is procedurally unreasonable because the district court
miscalculated her Sentencing Guidelines range. She contests the
district court’s findings on drug quantities attributed to her
transactions with Wayne Vick, Malcolm Dowdy, and Michael
Burrell. Finding no error, we affirm the sentence.
We review a sentence for reasonableness, applying an abuse
of discretion standard. Gall v. United States, 552 U.S. 38, 46
(2007). The court first reviews for significant procedural
error, and if the sentence is free from such error, it then
considers substantive reasonableness. Id. at 51. Procedural
error includes improperly calculating the Guidelines range,
treating the Guidelines range as mandatory, failing to consider
the 18 U.S.C. § 3553(a) (2012) factors, and failing to
adequately explain the selected sentence. Id.
The Government must prove the drug quantity attributable to
the defendant by a preponderance of the evidence. United
States v. Carter, 300 F.3d 415, 425 (4th Cir. 2002). The
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district court may rely on information in the presentence report
unless the defendant shows that the information is inaccurate or
unreliable. Id. A district court’s findings on drug quantity
are generally factual in nature and, therefore, are reviewed by
this court for clear error. Id. In determining the quantity of
drugs attributable to the defendant, “[w]here there is no drug
seizure or the amount seized does not reflect the scale of the
offense, the court shall approximate the quantity of the
controlled substance.” U.S. Sentencing Guidelines Manual
§ 2D1.1 cmt. n.5. (2013).
Baker argues that the evidence of the quantity of crack
attributed to her transactions with Wayne Vick and Michael
Burrell was inconsistent and unreliable. We have reviewed the
trial testimony provided and that recited by the district court *
and the applicable record and conclude that the court did not
clearly err in its determination of applicable drug quantity,
which resulted in a base offense level of 36.
Baker also challenges the district court’s attribution of
5.4 kilograms of crack based on purchases from Malcolm Dowdy
when the district court only found 2.4 kilograms at the first
sentencing. The Government responds that the district court’s
*
Baker did not include the original trial testimony of
Michael Burrell in the Joint Appendix, but the district court
quoted it in its sentence justification.
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finding was supported by a preponderance of the evidence, citing
the supporting trial testimony.
When an original sentence is vacated in its entirety,
“prior sentencing proceedings [are] nullified,” and the district
court conducts resentencing de novo. United States v. Muhammad,
478 F.3d 247, 250 (4th Cir. 2007); see Pepper v. United States,
131 S. Ct. 1229, 1251 (2011). However, where the sentence is
vacated in part or for a limited purpose, the mandate rule
“forecloses relitigation of issues expressly or impliedly
decided by the appellate court,” as well as “issues decided by
the district court but foregone on appeal or otherwise waived,
for example because they were not raised in the district court.”
United States v. Susi, 674 F.3d 278, 283 (4th Cir. 2012)
(internal quotation marks omitted). When the court’s opinion
“instructs or permits reconsideration of sentencing issues on
remand, the district court may consider the issue de novo,
entertaining any relevant evidence on that issue that it could
have heard at the first hearing.” United States v. Alston, 722
F.3d 603, 606-07 (4th Cir.) (internal quotation marks omitted),
cert. denied, 134 S. Ct. 808 (2013).
Here, the remand opinion vacated the sentence in its
entirety and remanded for “resentencing in accord with this
opinion.” United States v. Baker, 539 F. App’x 299, 306 (4th
Cir. 2013) (No. 12-5025). The opinion expressly contemplated
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that the district court should make factual findings regarding
the Government’s suggested applicable quantities, including
whether an increased amount for Dowdy was appropriate, on
remand. Id. at 302. The district court’s finding was therefore
fully within the scope of the remand opinion.
Accordingly, we affirm the sentence. We deny Baker’s
motions to file a pro se supplemental brief. 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
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