United States v. Tiffany Jones , 521 F. App'x 135 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4697
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
TIFFANY MAE JONES,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, District Judge. (5:10-cr-00056-RLV-DSC-4)
Submitted: March 29, 2013 Decided: April 17, 2013
Before WILKINSON, NIEMEYER, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Chiege O. Kalu Okwara, Charlotte, North Carolina, for Appellant.
Anne M. Tompkins, United States Attorney, William M. Miller,
Assistant United States Attorney, Charlotte, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Tiffany Mae Jones was indicted along with seven
co-defendants and charged with conspiracy to possess with intent
to distribute oxycodone, as well as two substantive counts,
including possession with intent to distribute oxycodone, and
possession with intent to distribute marijuana and aiding and
abetting the same. Jones pleaded guilty to all three counts
without the benefit of a plea agreement. The district court
granted a downward variance and sentenced Jones to thirty-three
months of imprisonment. On appeal, Jones challenges the
district court’s calculation of drug quantity attributed to her
and contends that she should have received a mitigating role
reduction for having a minimal role in the offense. Finding no
error, we affirm.
We review Jones’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, this court considers whether the
district court properly calculated the defendant’s advisory
Sentencing Guidelines range, gave the parties an opportunity to
argue for an appropriate sentence, considered the 18 U.S.C.
§ 3553(a) (2006) factors, selected a sentence based on clearly
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erroneous facts, and sufficiently explained the selected
sentence. Id. at 49-51.
If the sentence is free of significant procedural
error, this court reviews it for substantive reasonableness,
“tak[ing] into account the totality of the circumstances.” Id.
at 51. If the sentence is within or below the properly
calculated Guidelines range, the court applies a presumption on
appeal that the sentence is substantively reasonable. United
States v. Susi, 674 F.3d 278, 289 (4th Cir. 2012) (below
Guidelines sentence is entitled to presumption of
reasonableness); United States v. Mendoza-Mendoza, 597 F.3d 212,
217 (4th Cir. 2010). Such a presumption is rebutted only if the
defendant shows “that the sentence is unreasonable when measured
against the § 3553(a) factors.” United States v. Montes-Pineda,
445 F.3d 375, 379 (4th Cir. 2006) (internal quotation marks
omitted).
Jones alleges that the district court erred in relying
on the testimony of her co-defendant, Amber Babb, in determining
drug quantity because Babb’s testimony was unreliable. In
particular, she cites the inaccuracies regarding the time frame
that she could have distributed oxycodone pills in 2010 because
part of that year she was incarcerated. The Government counters
that the court’s drug quantity finding was based on drug amounts
with which Jones was directly involved and not based entirely on
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Babb’s statements. Further, the Government argues, because
Jones was convicted of conspiracy to distribute any quantities
involved in the conspiracy that were reasonably foreseeable to
Jones were attributable.
We review the district court’s “drug quantity finding
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). It is well
settled that, when determining the drug quantity to attribute to
a defendant convicted of a drug conspiracy, “the district court
may attribute to the defendant the total amount of drugs
involved in the conspiracy, provided the drug quantities were
reasonably foreseeable to the defendant and are within the scope
of the conspiratorial agreement.” United States v. Randall, 171
F.3d 195, 210 (4th Cir. 1999).
The district court’s approximation of drug weight was
based on amounts with which Jones was directly involved. The
evidence showed that Jones participated in and was present
during trips to Florida to obtain oxycodone pills and that, in
addition to distributing pills herself, also discussed the North
Carolina distribution process with co-conspirator Adam Jones.
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There was also sufficient evidence to support the district
court’s finding regarding the number of oxycodone pills
involved. In addition to Babb’s testimony, there were specific
examples of Jones’s drug distribution activities described in
the presentence report and corroborated by statements from other
co-conspirators regarding Jones’s involvement.
Accordingly, Jones fails to establish any clear error
in the district court’s calculation of the drug quantity
attributable to her. See 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);
Randall, 171 F.3d at 210-11 (explaining that a defendant bears
the burden of establishing that information in the presentence
report the district court relied on in calculating the relevant
drug quantity is incorrect).
Jones also challenges the district court’s refusal to
apply a mitigating role adjustment, which we review for clear
error. See United States v. Powell, 680 F.3d 350, 359 (4th Cir.
2012). Pursuant to U.S. Sentencing Guidelines Manual § 3B1.2
(2011), a district court may decrease a defendant’s offense
level upon finding that the defendant played a minor or minimal
role in the offense. In light of the evidence previously
discussed, including Jones’s role in the conspiracy throughout
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its duration, controlled buys from Jones, her presence on doctor
shopping trips in Florida, and her discussions about the
conspiracy with Adam Jones and others, we conclude that Jones’s
role was “material or essential to committing the offense[s],”
United States v. Akinkoye, 185 F.3d 192, 202 (4th Cir. 1999)
(internal quotation marks omitted), and determine that the
district court did not clearly err in refusing to apply the
adjustment.
We therefore conclude that the district court’s
sentence was reasonable and affirm the judgment. 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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