United States v. Roger Austin, Jr. , 634 F. App'x 98 ( 2015 )


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  •                             UNPUBLISHED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    Affirmed by unpublished per curiam opinion.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    Unpublished opinions are not binding precedent in this circuit.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 121-
    month sentence imposed following his guilty plea to conspiracy
    to     possess    with     intent        to    distribute       methamphetamine,         in
    violation of 21 U.S.C. § 846 (2012).                     On appeal, Austin claims
    that    his    guilty    plea    was     not    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        at
    sentencing for his coconspirators’ drug activities.                          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         foreseeability        of     his
    coconspirators’ drug activities.                   We affirm.
    Because Austin failed to raise either of his arguments in
    district court, we review each for plain error.                         United States
    v.   Aplicano-Oyuela,          
    792 F.3d 416
    ,   422    (4th    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.        United States v. Massenburg, 
    564 F.3d 337
    , 343
    (4th    Cir.     2009).         If   the      three-part     plain     error      test   is
    satisfied, we must decide whether to cure the error, and will do
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    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     Sentencing       Guidelines        and     the      possibility      of
    departure;   however,    the     court     is   not     required    to     inform   the
    defendant of the applicable sentencing range before accepting a
    guilty plea.    Fed. R. Crim. P. 11(b)(1)(M); 
    DeFusco, 949 F.2d at 118-19
    .   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
    .              In reviewing the district court’s
    compliance   with     Rule    11,     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
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    the offense.”     United States v. Ferrel, 
    603 F.3d 758
    , 762 (10th
    Cir. 2010).       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.”             United States v. Green, 
    599 F.3d 360
    , 367 (4th Cir. 2010).             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    in    part   on    the   reasonably
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    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.”                   United States v. Bell, 
    667 F.3d 431
    , 441 (4th Cir. 2011).                   “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.”               United States v. Flores-Alvarado,
    
    779 F.3d 250
    ,    255    (4th    Cir.       2015).      “Relevant      conduct    in
    conspiracy cases includes all reasonably foreseeable acts and
    omissions of others in furtherance of the jointly undertaken
    criminal activity.”           
    Id. (internal quotation
    marks omitted); see
    U.S.    Sentencing       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    must    have    been       reasonably      foreseeable    to    the
    defendant.”           
    Flores-Alvarado, 779 F.3d at 255
       (emphasis
    omitted).       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).
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    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      standard,     we    will       reverse      the    district        court’s
    finding    only     if    we   are    “left       with     the      definite    and    firm
    conviction that a mistake has been committed.”                           
    Id. (internal quotation
      marks        omitted).      However,         because       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.                               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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