United States v. Campbell , 354 F. App'x 786 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4312
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RONALD ERIC CAMPBELL, a/k/a Peanut,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. R. Bryan Harwell, District Judge.
(4:08-cr-00179-RBH-1)
Submitted: November 20, 2009 Decided: December 7, 2009
Before MICHAEL, GREGORY, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Ray Coit Yarborough, Jr., LAW OFFICE OF RAY COIT
YARBOROUGH, JR., Florence, South Carolina, for Appellant.
Alfred William Walker Bethea, Jr., Assistant United States
Attorney, Florence, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ronald Eric Campbell appeals from the 111-month
sentence imposed following his guilty plea, pursuant to a
written plea agreement, to one count of possession with intent
to distribute heroin, in violation of 21 U.S.C. § 841(a)(1),
(b)(1)(C) (2006) (Count 1), and one count of using and carrying
a firearm in furtherance of a drug trafficking crime, in
violation of 18 U.S.C. § 924(c)(1)(A) (2006) (Count 3).
Campbell’s counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), asserting that there are no
meritorious grounds for appeal, but questioning whether the
district court erred in calculating Campbell’s base offense
level for Count 1 and whether the district court properly
enhanced Campbell’s sentence for his role in the offense and for
obstruction of justice. Campbell was advised of his right to
file a pro se brief, but has not done so. The Government has
not filed a brief. Finding no error, we affirm.
Consistent with United States v. Booker, 543 U.S. 220(2005), the district court is required to follow a multi-step
process at sentencing. First, it must calculate the proper
sentencing range prescribed by the Guidelines. Gall v. United
States, 552 U.S. 38, 49 (2007); see also United States v. Abu
Ali, 528 F.3d 210, 260 (4th Cir. 2008), cert. denied, 129 S. Ct.
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1312 (2009). It must then consider that range in light of the
parties’ arguments regarding the appropriate sentence and the
factors set out in 18 U.S.C. § 3553(a) (2006) before imposing
its sentence. Gall, 552 U.S. at 49-50; see also Abu Ali, 528
F.3d at 260. We review the district court’s sentence for abuse
of discretion, first ensuring that the district court did not
commit any “significant procedural error,” such as failing to
properly calculate the advisory Guidelines range. Gall, 552
U.S. at 41, 51.
All of Campbell’s arguments go to whether the district
court erred in calculating his offense level and Guidelines
range. Campbell first questions whether the district court
erred by using the entire weight of the heroin mixture sold to
calculate his base offense level, rather than the weight of the
pure heroin. A district court’s factual findings regarding drug
weights are reversible only if clearly erroneous. United
States v. Lamarr, 75 F.3d 964, 972 (4th Cir. 1996).
The Guidelines provide that “[u]nless otherwise
specified, the weight of a controlled substance set forth in the
table refers to the entire weight of any mixture or substance
containing a detectable amount of the controlled substance.”
U.S. Sentencing Guidelines Manual (“USSG”) § 2D1.1(c), Notes to
Drug Quantity Table, (A) (2008). Additionally, in Chapman v.
3
United States, the Supreme Court stated that “Congress adopted a
‘market-oriented’ approach to punishing drug trafficking, under
which the total quantity of what is distributed, rather than the
amount of pure drug involved, is used to determine the length of
the sentence.” 500 U.S. 453, 461 (1991). Although the Chapman
Court was interpreting § 841(b)(1)(A) and (b)(1)(B), rather than
§ 841(b)(1)(C), it noted that “Congress clearly intended the
dilutant, cutting agent, or carrier medium to be included in the
weight of [cocaine or heroin] for sentencing purposes.” Id. at
460. Therefore, we find that the district court’s adoption of
the entire weight of the mixture containing heroin listed in the
Presentence Investigation Report was not clearly erroneous. The
district court then properly determined that, based on the 12.54
grams of the mixture containing heroin, Campbell’s base offense
level was 16. USSG § 2D1.1(c)(12).
Campbell next questions whether the district court
properly enhanced his sentence, pursuant to USSG § 3B1.1(c), for
his alleged role in the offense. “A district court’s findings
regarding sentence enhancement are factual in nature and are
reviewed only for clear error.” United States v. Carter, 300
F.3d 415, 426 (4th Cir. 2002). Pursuant to USSG § 3B1.1(c), a
two-level increase to the defendant’s base offense level is
warranted “[i]f the defendant was an organizer, leader, manager,
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or supervisor” in the charged offense and the offense involved
less than five participants. The adjustment applies if the
defendant organized, led, managed, or supervised one or more
participants. USSG § 3B1.1, cmt. n.2.
The evidence reveals that a confidential informant
(“CI”) for the Horry County Police Department arranged a drug
buy with Campbell. Instead of handling the sale himself,
Campbell sent two runners to deliver the drugs. The district
court found that, because Campbell arranged the drug buy with
the CI, but sent runners to deliver the drugs, the enhancement
was proper. We find that the district court did not clearly err
in its conclusion.
Finally, Campbell questions whether the district court
properly enhanced his sentence, pursuant to USSG § 3C1.1, for
his alleged threats against other witnesses. The district
court’s findings regarding the enhancement are reviewed for
clear error. Carter, 300 F.3d at 426. Pursuant to USSG
§ 3C1.1, a two-level increase to the defendant’s base offense
level is warranted:
If (A) the defendant willfully obstructed or impeded,
or attempted to obstruct or impede, the administration
of justice with respect to the investigation,
prosecution, or sentencing of the instant offense of
conviction, and (B) the obstructive conduct related to
(i) the defendant’s offense of conviction and any
relevant conduct; or (ii) a closely related offense.
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Obstructive conduct includes “threatening, intimidating, or
otherwise unlawfully influencing a co-defendant, witness, or
juror, directly or indirectly, or attempting to do so.” USSG
§ 3C1.1, cmt. n.4(a).
At the sentencing hearing, the Government produced two
letters, both written prior to Campbell’s guilty plea. The
first letter was written by an inmate who was to be a witness
against Campbell at trial, alleging that Campbell threatened
violence against the inmate and his family if he testified. The
second letter, written by another inmate, alleged that Campbell
told the inmate to tell another witness against Campbell that
Campbell would kill any witness who testified against him. The
inmate who wrote the second letter also testified at Campbell’s
sentencing hearing that Campbell threatened him and two other
inmates who were to testify against Campbell. In his defense,
Campbell testified that he did not threaten any witnesses,
although he admitted that he got into a shouting argument with
one of them. We find that, based on the evidence presented, the
district court did not clearly err in applying the enhancement
for obstruction of justice.
Accordingly, for the reasons described, the district
court did not commit reversible error by assigning Campbell a
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total offense level of 18, * a criminal history category of IV,
and a Guidelines range of forty-one to fifty-one months’
imprisonment on Count 1.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm the district court’s judgment. This court
requires that counsel inform Campbell, in writing, of his right
to petition the Supreme Court of the United States for further
review. If Campbell requests that a petition be filed, but
counsel believes that such a petition would be frivolous,
counsel may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Campbell. We dispense with oral argument because
the facts and legal conclusions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED
*
Campbell’s total offense level after enhancements was 20
and the district court determined that Campbell was entitled to
a two-level reduction for acceptance of responsibility for
pleading guilty. Because the Government did not appeal or
cross-appeal the district court’s grant of an offense level
reduction for acceptance of responsibility, we have no authority
to sua sponte review that determination. See Greenlaw v. United
States, 128 S. Ct. 2559, 2564 (2008).
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