United States v. Beaufort , 334 F. App'x 584 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4011
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KELVIN BEAUFORT, a/k/a Kev, a/k/a K Rock,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
District Judge. (3:05-cr-00104-FDW-CH-8)
Submitted: May 8, 2009 Decided: June 12, 2009
Before NIEMEYER, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Randolph M. Lee, Charlotte, North Carolina, for Appellant. Amy
Elizabeth Ray, Assistant United States Attorney, Asheville,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Following a lengthy jury trial, Kelvin Beaufort was
convicted of conspiracy to possess with intent to distribute and
to distribute cocaine and cocaine base, in violation of 21
U.S.C. § 846 (2006). Beaufort was sentenced to 324 months’
imprisonment. Finding no error, we affirm.
Counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), in which he asserts there are
no meritorious issues for appeal but questions whether the
district court erred in its application of U.S. Sentencing
Guidelines Manual (“USSG”) § 3B1.1(c) (2007). Beaufort was
notified of his right to file a pro se supplemental brief, but
he did not do so. The Government elected not to file a
responsive brief.
When determining a sentence, the district court must
calculate the appropriate advisory Guidelines range and consider
it in conjunction with the factors set forth in 18 U.S.C.
§ 3553(a) (2006). Gall v. United States, 128 S. Ct. 586, 596
(2007). Appellate review of a district court’s imposition of a
sentence, “whether inside, just outside, or significantly
outside the Guidelines range,” is for abuse of discretion. Id.
at 591. Sentences within the applicable Guidelines range may be
presumed by the appellate court to be reasonable. United
States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007).
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The district court followed the necessary procedural
steps in sentencing Beaufort, appropriately treating the
Guidelines as advisory, properly calculating and considering the
applicable Guidelines range, and weighing the relevant § 3553(a)
factors. Furthermore, Beaufort’s sentence, which is the low end
of the advisory Guidelines range and well below the applicable
statutory maximum, see 21 U.S.C.A. § 841(b)(1)(A) (West 1999 &
Supp. 2008) (prescribing maximum of life imprisonment), may be
presumed reasonable by this court.
Counsel, however, contends that the district court
erred by increasing Beaufort’s offense level under § 3B1.1(c)
for his alleged aggravated role in the offense. When reviewing
the district court’s application of the Sentencing Guidelines,
we review findings of fact for clear error and questions of law
de novo. United States v. Osborne, 514 F.3d 377, 387 (4th
Cir.), cert. denied, 128 S. Ct. 2525 (2008). “To qualify for an
adjustment under [§ 3B1.1], the defendant must have been the
organizer, leader, manager, or supervisor of one or more other
participants” in the criminal activity. USSG § 3B1.1, comment.
(n.2); see also United States v. Rashwan, 328 F.3d 160, 166 (4th
Cir. 2003) (“Leadership over only one other participant is
sufficient as long as there is some control exercised.”).
The Presentence Investigation Report indicated that
“[o]n some occasions, Beaufort would utilize Malcolm Colman
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Dawson, a/k/a “Mac” [sic] to deliver the cocaine to” a co-
conspirator. Beaufort’s own testimony indicated that Dawson
served as his driver and delivery person. Telephone
conversations admitted at trial further establish that Dawson
acted at Beaufort’s behest. The aggravated role enhancement was
therefore supported by the record. Moreover, we conclude that
the district court did not abuse its discretion in imposing the
chosen sentence. ∗
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. Accordingly, we affirm the judgment of the district
court. This court requires that counsel inform his client, in
writing, of his right to petition the Supreme Court of the
United States for further review. If the client requests that a
petition be filed, but counsel believes that such a petition
would be frivolous, then counsel may move this court for leave
to withdraw from representation. Counsel’s motion must state
∗
Beaufort was sentenced on the same date Kimbrough v.
United States, 128 S. Ct. 558 (2007), issued. Although counsel
did not object to the crack/powder disparity at sentencing, he
moved the district court on December 19, 2007, to reconsider its
sentence in light of Kimbrough. The court denied the motion,
stating it “was aware of its discretion to vary upwardly or
downwardly.” Thus, Beaufort cannot establish that the court
plainly erred in failing to specifically consider the
crack/powder disparity on the record. See United States v.
White, 405 F.3d 208, 223 (4th Cir. 2005) (requiring showing of
“actual prejudice”).
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that a copy thereof was served on the client. We dispense with
oral argument because the facts and legal contentions are
adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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