United States v. Tremayne Lynch , 601 F. App'x 191 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4438
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TREMAYNE A. LYNCH, a/k/a Paco,
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. (5:13-cr-00255-D-1)
Submitted: January 30, 2015 Decided: February 10, 2015
Before AGEE and HARRIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Jeffrey W. Gillette, GILLETTE LAW FIRM, PLLC, Franklin, North
Carolina, for Appellant. Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Phillip A. Rubin, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Tremayne A. Lynch appeals his sentence following a
guilty plea to conspiracy to possess cocaine base with intent to
distribute, in violation of 21 U.S.C. § 841(a)(1) (2012) (Count
One), and discharging a firearm during and in relation to a drug
trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(iii)
(2012) (Count Two). The district court applied an eight-level
upward departure and sentenced Lynch to 450 months’
imprisonment, 240 months on Count One and 210 months on Count
Two, to be served consecutively. Lynch challenges the drug
weights applied by the district court on Count One and the
upward departure on Count Two. We affirm.
The Government argues that Lynch’s challenge to Count
One is barred by language in his plea agreement waiving his
right to appeal a within-Guidelines sentence. Lynch argues that
because his overall sentence exceeded the Guidelines range, his
waiver does not bar an appeal of any part of that sentence,
including his sentence on Count One. “[W]e will enforce an
appellate waiver provision against a defendant only if that
provision is clearly and unambiguously applicable to the issues
raised by the defendant on appeal.” United States v. Yooho
Weon, 722 F.3d 583, 588 (4th Cir. 2013) (internal quotation
marks omitted) (reasoning that “traditional principles of
contract law” require plea agreements to be construed against
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Government). The parties dispute whether the plea agreement’s
language allowing Lynch to appeal “from a sentence in excess of
the applicable advisory Guideline range” allows him to appeal
Count One where his total sentence exceeded the Guidelines
range, but his sentence on Count One did not. The crux of this
dispute is whether the term “sentence” in the phrase “sentence
in excess of the Guideline range” refers to Lynch’s total
sentence or to his sentences on each individual count of
conviction. Because this term is ambiguous, we construe the
appellate waiver narrowly to allow Lynch’s challenge to Count
One.
Lynch argues that the district court erred by relying
on a confidential informant in determining the drug weights
attributable to Lynch. “We review a district court’s legal
conclusions at sentencing de novo and its factual findings for
clear error.” United States v. McDowell, 745 F.3d 115, 120 (4th
Cir. 2014), cert. denied, __ S. Ct. __, 2015 WL 132957 (U.S.
Jan. 12, 2015) (No. 13-10640). In resolving a factual dispute,
a “sentencing court may give weight to any relevant information
before it, including uncorroborated hearsay, provided that the
information has sufficient indicia of reliability to support its
accuracy.” United States v. Gomez-Jimenez, 750 F.3d 370, 386
(4th Cir.) (internal quotation marks omitted), cert. denied, 135
S. Ct. 305 (2014). We “afford considerable deference to a
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district court’s determinations regarding the reliability of
information in a PSR,” and will not disturb such determinations
unless we are “left with the definite and firm conviction that a
mistake has been committed.” McDowell, 745 F.3d at 120
(internal quotation marks omitted). Lynch argues that the
district court could not reasonably rely on the confidential
informant because he misidentified Lynch’s gang affiliation and
stated that Lynch engaged in multiple drug transactions a day at
a supplier’s house even though Lynch was employed during this
time period and later needed another person to direct a
coconspirator who was driving him to that supplier’s house.
These discrepancies are insufficient to show that the district
court clearly erred by trusting the informant, who, according to
testimony presented at sentencing, had a long record of
providing reliable information. Therefore, we affirm Lynch’s
sentence on Count One.
Lynch also challenges the district court application
of upward departures on Count Two. We have repeatedly held that
such errors are harmless where the district court states that it
would have imposed the same sentence as a variance and such a
variance would have been substantively reasonable. E.g., Gomez-
Jimenez, 750 F.3d at 386 (collecting cases); see also United
States v. Rivera–Santana, 668 F.3d 95, 103 (4th Cir. 2012)
(applying this rule where length of hypothetical variance was
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ninety months). In this case, the district court made such a
statement, and we find that it could have reasonably imposed its
sentence on Count Two as a variance based on its recognition of
the wanton cruelty of Lynch’s conduct. See United States v.
Diosdado-Star, 630 F.3d 359, 364 (4th Cir. 2011) (holding that
district court need only provide reasoned basis for variance).
Accordingly, we hold that any error in Lynch’s sentence on Count
Two was harmless.
Accordingly, we affirm the judgment of the district
court. 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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