United States v. George Newman , 613 F. App'x 235 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4093
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
GEORGE ANTONIO NEWMAN,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington. Robert C. Chambers,
Chief District Judge. (3:14-cr-00050-2)
Submitted: August 6, 2015 Decided: August 24, 2015
Before DUNCAN, DIAZ, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Natalie Atkinson, ATKINSON & POLAK, PLLC, Charleston, West
Virginia, for Appellant. Richard Gregory McVey, Assistant United
States Attorney, Huntington, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
George Antonio Newman appeals from his conviction for
possession with intent to distribute cocaine and his resulting
51-month sentence. On appeal, counsel has filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), stating
that there are no meritorious issues for appeal but questioning
whether Newman’s sentence was substantively reasonable and
whether the district court erred in denying a minor role
adjustment. * Neither Newman nor the Government has filed a
brief. After a careful consideration of the entire record, we
affirm.
Newman first contends that the district court’s drug
quantity calculations resulted in a substantively unreasonable
sentence. Specifically, Newman avers that certain cocaine
quantities were treated as powder cocaine for purposes of
sentencing his co-defendants but were treated as crack cocaine
at his sentencing. However, as counsel notes, while the
district court applied different calculations at the
sentencings, any error in Newman’s case was harmless and did not
result in a substantively unreasonable sentence. See United
* Counsel also questions whether Newman’s appellate waiver
was knowing and voluntary. However, since the Government does
not rely on the waiver on appeal, we decline to address this
issue.
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States v. Howard, 773 F.3d 519, 528 (4th Cir. 2014) (holding
that a review for substantive reasonableness must be based on
the totality of the circumstances).
Newman next contends that the district court erred in
failing to grant him a downward adjustment for his minor role in
the offense. He claims that he was directly responsible for a
significantly smaller drug weight than his co-defendants and
that they were more involved in the joint criminal activity than
he was. The district court denied Newman’s request for a
downward adjustment, reasoning that, while Newman was less
culpable than certain other co-defendants, he was still heavily
involved in the criminal activity. Specifically, Newman
continued his criminal activity even after being alerted to law
enforcement involvement; he engaged in drug transactions
involving substantial drug weight; and he used his properties
for drug storage and for dealing.
“The defendant bears the burden of proving, by a
preponderance of the evidence, that he is entitled to a
mitigating role adjustment in sentencing.” United States v.
Powell, 680 F.3d 350, 358-59 (4th Cir. 2012) (internal quotation
marks omitted). A district court’s determination that a
defendant has not demonstrated his entitlement to a mitigating
role adjustment is a factual finding reviewed for clear error.
Id. at 359. A defendant who is only a “minor participant” in
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criminal activity may have his offense level reduced by two
levels. U.S. Sentencing Guidelines Manual § 3B1.2(b) (2013). A
minor role adjustment is appropriate when the defendant “is less
culpable than most other participants, but whose role could not
be described as minimal.” USSG § 3B1.2 cmt. n.5. “The critical
inquiry in determining whether a defendant is entitled to an
adjustment for his role in the offense is not just whether the
defendant has done fewer bad acts than his co-defendants, but
whether the defendant’s conduct is material or essential to
committing the offense.” United States v. Dawson, 587 F.3d 640,
646 (4th Cir. 2009) (internal quotation marks omitted).
We conclude that Newman rendered services “material” and
“essential” to the drug conspiracy. Furthermore, he persisted
in his involvement even after being alerted to a police
investigation, and in his plea stipulations, he admitted the
foreseeability of drug transactions for which he was not
directly responsible. The presentence report also describes
other co-defendants involved with the organization who were less
culpable than Newman. Accordingly, the district court did not
clearly err in denying the adjustment.
We have examined the entire record in this case pursuant to
Anders and have found no meritorious issues for review.
Accordingly, we affirm Newman’s conviction and sentence. This
court requires that counsel inform Newman, in writing, of the
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right to petition the Supreme Court of the United States for
further review. If Newman requests that a petition be filed,
but counsel believes that such a petition would be frivolous,
then counsel may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Newman. 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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