United States v. Steven Riggs, II , 493 F. App'x 401 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4943
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
STEVEN F. RIGGS, II,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Big Stone Gap. James P. Jones,
District Judge. (2:10-cr-00002-JPJ-PMS-4)
Submitted: June 18, 2012 Decided: August 17, 2012
Before GREGORY, AGEE, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Timothy W. McAfee, TIMOTHY W. MCAFEE, PLLC, Norton, Virginia,
for Appellant. Timothy J. Heaphy, United States Attorney,
Roanoke, Virginia, Albert P. Mayer, Special Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Abingdon,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Steven F. Riggs appeals his 210-month sentence and
six-year term of supervised release after pleading guilty to
conspiracy with intent to distribute OxyContin (oxycodone) or
its equivalents in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(C) and 846 (2006). Riggs contends that: (1) the Drug
Equivalency Tables in U.S.S.G § 2D1.1 are arbitrary and
capricious and unconstitutional; (2) the district court abused
its discretion by denying his motion to withdraw his plea of
guilty; (3) the district court’s finding as to his attributable
drug weight for sentencing purposes was erroneous; (4) the
district court’s finding that Riggs managed or supervised
another participant for sentencing purposes was erroneous; and
(5) the district court’s findings with respect to Riggs’s prior
criminal history for sentencing purposes were erroneous.
For the reasons that follow, we affirm the district
court’s sentence.
I.
Riggs first asserts that the Drug Equivalency Tables
in U.S.S.G. § 2D1.1 have no rational basis and to sentence a
person according to the conversions is a violation of due
process. This Circuit has previously held that the Drug
Equivalency Tables in U.S.S.G. § 2D1.1 are valid and do not
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violate the Constitution. See United States v. Bayerle, 898
F.2d 28, 32 (4th Cir. 1990). That decision is binding, and
Riggs’s argument to the contrary is without merit.
II.
Riggs next contends that the district court’s denial
of his motion to withdraw his guilty plea constitutes an abuse
of discretion. It is well-established that once the district
court has accepted a guilty plea, it is within the district
court’s discretion whether to grant a motion to withdraw it.
Fed. R. Crim. P. 11(d)(2)(b). In deciding such a motion, the
key factor is whether the Rule 11 hearing was properly
conducted. United States v. Bowman, 348 F.3d, 408 414 (4th Cir.
2003). If the Rule 11 proceeding is adequate, then a strong
presumption attaches that the plea is final and binding. United
States v. Lambey, 974 F.2d 1389, 1394 (4th Cir. 1992). The
court also considers six additional factors:
(1)whether the defendant has offered credible evidence
that his plea was not knowing or otherwise
involuntary; (2) whether the defendant has credibly
asserted his legal innocence; (3) whether there has
been a delay between entry of the plea and filing of
the motion; (4) whether the defendant has had close
assistance of counsel; (5) whether the withdrawal will
cause prejudice to the government; and (6) whether
withdrawal will inconvenience the court and waste
judicial resources.
United States v. Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000)
(citing United States v. Moore, 931 F.2d 245, 248 (4th Cir.
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1991)). The movant bears the burden of demonstrating that
withdrawal should be granted. United States v. Dyess, 478 F.3d
224, 237 (4th Cir 2007).
Here, the district court conducted a thorough guilty
plea hearing in compliance with Fed. R. Crim. P. 11, ensuring
that Riggs understood: his rights to plead not guilty, have a
jury trial, and be represented by an attorney; his trial rights
to confront and cross-examine witnesses, be protected from
compelled self-incrimination, testify and present evidence, and
compel the attendance of witnesses; that he waived his trial
rights if he pled guilty; the nature of the charge to which he
was pleading guilty; the maximum possible and mandatory minimum
penalties as a result of his plea, including imprisonment,
fines, supervised release, and special assessments; and that the
court would consider not only the statutory provisions but also
sentencing guidelines and other sentencing factors in
determining his sentence. The court also ensured that his
guilty plea was voluntary, and that there was a factual basis
for the plea.
Riggs affirmed that he had been over the indictment
with his counsel and that he had an opportunity to review and
discuss the charges with his attorney. Riggs also stated that
he was satisfied with his lawyer’s representation. When asked
if “anyone attempted in any way to force [him] to plead guilty,”
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Riggs answered, “I wouldn’t say I had been forced to plead
guilty, but I believe it’s in my best interests to.” Riggs
further stated that he did not dispute or contest any of the
facts represented by the government and admitted at the hearing
that he sold some of the drugs.
Because the district court conducted a thorough guilty
plea hearing in compliance with Fed. R. Crim. P. 11 and the
relevant factors weigh against Riggs’s motion to withdraw his
guilty plea, we cannot say that the district court abused its
discretion by denying Riggs’s motion to withdraw his guilty
plea.
III.
Riggs next argues that the district court erred in
calculating the quantity attributable to him for purposes of
calculating his base offense level for sentencing. A person
convicted of conspiracy to distribute controlled substances “is
accountable for all quantities of contraband with which he was
directly involved and . . . all reasonably foreseeable
quantities of contraband that were within the scope of the
criminal activity the he jointly undertook.” U.S.S.G. § 1B1.3
(2009).
In United States v. Bell, this Court considered a
conspiracy to distribute oxycondone in which one of the
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participants, Bell, had a legitimate prescription for some of
the pills she sold and also claimed that she retained some drugs
for personal use. 667 F.3d 431, 442 (4th Cir. 2011). There,
this Court reaffirmed the proposition that where a defendant has
been convicted of conspiracy, drugs retained by the defendant
for personal use are considered “contraband with which he was
directly involved” and therefore “relevant conduct” for
sentencing purposes. Bell, 557 F.3d at 422. Under Bell, all of
the drugs Riggs handled or that were obtained on his trips to
Florida are properly attributable to him, and the district court
therefore did not err in including those amounts in its
calculations.
Moreover, in compliance with United States v. Carter,
564 F.3d 325, 330 (4th Cir. 2009), the district court performed
an individualized assessment of the evidence against Riggs, on
the record, and attributed to Riggs only those quantities that
were confirmed by witnesses who appeared at the sentencing
hearing. The district court further noted that the estimate the
court used was “very conservative” in light of the testimony at
the hearing. As such, the district court’s attribution to Riggs
of the drugs he handled and obtained was not clearly erroneous.
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IV.
Riggs next contends that the district court erred by
increasing his base offense level for being a manager or
supervisor. A defendant qualifies for the adjustment if he
managed or supervised one or more other participants. U.S.S.G.
§ 3B1.1(b), cmt. 2. A “participant” is a person who is
criminally responsible for the commission of the offense and the
person need not be indicted or convicted. See id., cmt. 1. The
indictment in this case charges Riggs with conspiring with his
co-defendants and “others, known and unknown to the grand jury.”
The evidence presented supports the finding that Riggs
introduced participants to his system, exercised control over
them as they accompanied him to Florida, and had plenary
authority over the terms of the trips. It was therefore not
clearly erroneous for the district court to agree with the PSR’s
recommendation that Riggs was a manager or supervisor with
respect to his offense, and to increase his offense level
accordingly, pursuant to U.S.S.G. § 3B1.1(b).
V.
Finally, Riggs’s various arguments concerning the
district court’s treatment of criminal convictions from his past
are likewise without merit. The PSR calculated and the district
court adopted a criminal history score of twenty-one for Riggs.
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Accordingly, Riggs was placed into criminal history category VI.
This category applies wherever thirteen or more points are
assigned. U.S.S.G. Chapter 5, Part A. Thus, the sentencing
range the district court used would not be impacted unless
Riggs’s criminal history score were reduced by nine or more
points.
The crux of Riggs’s argument is based on the premise
that twelve of his prior convictions –- those reflected in
paragraphs 109, and 112-13, of the PSR –- should not have been
included in the computation of Riggs’s criminal history category
because they qualify as “relevant conduct” to his instant
conspiracy offense. We disagree.
Only Riggs himself attempted to connect these offenses
to the conspiracy, and then only at the sentencing hearing, when
he had a motive to do so. Moreover, none of the offenses that
Riggs seeks to connect to the conspiracy occurred along the
route to Florida and instead each occurred locally in Kentucky,
Tennessee, or Virginia. Based on the totality of the evidence,
the district court was not required to believe Riggs’s
testimony, and did not err by rejecting it. See United States
v. Thompson, 554 F.3d 450, 452 (4th Cir. 2009).
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VI.
For the reasons set forth above, we affirm the
district court’s sentence. 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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