United States v. Kevin Robinson ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4260
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KEVIN LUTHOR ROBINSON, a/k/a KK,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington. Robert C. Chambers,
Chief District Judge. (3:12-cr-00227-1)
Submitted: September 30, 2013 Decided: October 4, 2013
Before WYNN, FLOYD, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
W. Michael Frazier, FRAZIER & OXLEY, L.C., Huntington, West
Virginia, for Appellant. R. Booth Goodwin II, United States
Attorney, Joseph F. Adams, Assistant United States Attorney,
Huntington, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kevin Luthor Robinson pled guilty pursuant to a plea
agreement to conspiracy to distribute a quantity of heroin and
twenty-eight grams or more of cocaine base, in violation of
21 U.S.C. § 846 (2006). * The district court calculated
Robinson’s Guidelines range under the U.S. Sentencing Guidelines
Manual (“USSG”) (2012) at 108 to 135 months’ imprisonment and
sentenced him to 135 months’ imprisonment. Robinson appeals,
challenging the district court’s drug quantity determination and
its application of the two-level enhancement under USSG
§ 3B1.1(c) for his aggravating role in the offense. We affirm.
We review Robinson’s sentence for reasonableness
“under a deferential abuse-of-discretion standard.” Gall v.
United States, 552 U.S. 38, 41, 51 (2007). This review entails
appellate consideration of both the procedural and substantive
reasonableness of the sentence. Id. at 51. In determining
procedural reasonableness, we consider whether the district
court properly calculated the defendant’s advisory Guidelines
range. Id.Robinson argues first that the district erred in its
calculation of the drug quantity it attributed to him.
*
Robinson originally proceeded to a trial on a third
superseding indictment charging him with multiple heroin and
cocaine base offenses but pled guilty on the third day of trial.
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We review the district court’s drug quantity finding underlying
its calculation of the base offense level for clear error.
United States v. Kellam, 568 F.3d 125, 147 (4th Cir. 2009).
This deferential standard of review requires reversal only if
this court, upon review of the record as a whole, “is left with
the definite and firm conviction that a mistake has been
committed.” Easley v. Cromartie, 532 U.S. 234, 242 (2001)
(internal quotation marks omitted).
After review of the record, we conclude that the
district court’s determination that a marijuana equivalency of
at least 700 but less than 1000 kilograms is supported by
Robinson’s admissions at the guilty plea hearing and testimony
and evidence adduced at Robinson’s trial and sentencing that the
district court credited. We thus discern no clear error in the
district court’s drug quantity calculation. See USSG
§ 1B1.3(a)(2) (stating that a district court must consider “all
acts and omissions . . . that were part of the same course of
conduct or common scheme or plan as the offense of conviction”
in calculating relevant conduct); Kellam, 568 F.3d at 147(noting that the district court’s drug quantity finding must be
supported by a preponderance of the evidence and concluding that
testimony received at trial and sentencing supported the court’s
finding); United States v. Randall, 171 F.3d 195, 210-11
(4th Cir. 1999) (explaining that a defendant bears the burden of
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establishing that information the district court relied on in
calculating the relevant drug quantity is incorrect); see also
United States v. Lamarr, 75 F.3d 964, 972-73 (4th Cir. 1996)
(concluding that approximation of drug quantity for sentencing
not clearly erroneous if supported by competent record
evidence).
Robinson also challenges the district court’s
application of the two-level enhancement for his aggravating
role in the offense. Section 3B1.1 of the Guidelines “provides
a range of adjustments to increase [a defendant’s] offense level
based upon the size of a criminal organization . . . and the
degree to which the defendant was responsible for committing the
offense.” USSG § 3B1.1, cmt. background. Under USSG
§ 3B1.1(c), a defendant qualifies for a two-level enhancement to
his offense level if he was “an organizer, leader, manager, or
supervisor in any criminal activity.” Application of the
enhancement is proper when the defendant exercises leadership
over only one participant, as long as some control is exercised.
United States v. Rashwan, 328 F.3d 160, 166 (4th Cir. 2003).
We conclude after review of the record that the
district court’s application of the two-level enhancement under
USSG § 3B1.1(c) is amply supported by trial testimony the
district court credited establishing that Robinson exercised
control over other participants in the conspiracy by directing
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the terms of their drug sales, arranging the logistics of drug
delivery, and advising one co-conspirator on methods for
obtaining materials to convert cocaine into cocaine base.
Accordingly, we discern no clear error in the district court’s
application of the enhancement. See Kellam, 568 F.3d at 147-48(stating standard of review and affirming application of
enhancement under USSG § 3B1.1(b) where defendant controlled the
drug buys of co-conspirators and directed the terms of payment);
United States v. Bartley, 230 F.3d 667, 673-74 (4th Cir. 2000)
(affirming application of § 3B1.1(b) enhancement where the
defendant directed the activities of street-level drug dealers
and advised them on drug sales techniques, set prices and
payment terms, arranged logistics of delivery, and directed the
mailing and transport of drugs).
We therefore 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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