United States v. Oiler , 282 F. App'x 285 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4175
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JONATHAN WAYNE OILER, a/k/a Joey Wayne Oiler,
Defendant - Appellant.
No. 07-4247
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LAURA BETH OILER, a/k/a Laura Beth Gibbson,
Defendant - Appellant.
Appeals from the United States District Court for the Southern
District of West Virginia, at Beckley. Thomas E. Johnston,
District Judge. (5:06-cr-00098)
Submitted: June 5, 2008 Decided: June 27, 2008
Before NIEMEYER, MOTZ, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Christopher S. Morris, BAILEY & GLASSER, LLP, Charleston, West
Virginia; Mark L. French, CRISWELL & FRENCH, PLLC, Charleston, West
Virginia, for Appellants. Charles T. Miller, United States
Attorney, John L. File, Assistant United States Attorney, Beckley,
West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Jonathan and Laura Oiler pled guilty pursuant to written
plea agreements to conspiracy to distribute cocaine base, in
violation of 21 U.S.C. § 846 (2000). Jonathan and Laura Oiler were
sentenced to 205 months’ and 168 months’ imprisonment,
respectively. Finding no error, we affirm.
On appeal, Laura Oiler contends the district court erred
in calculating her attributable drug weight. Additionally, both
Jonathan and Laura Oiler contend that the district court erred in
refusing to apply downward adjustments for acceptance of
responsibility. When reviewing the district court’s application of
the Sentencing Guidelines, we review findings of fact for clear
error and questions of law de novo. United States v. Green, 436
F.3d 449, 456 (4th Cir. 2006).
Laura Oiler contends the drug weight attributed to
Jonathan Oiler should not have likewise been imputed to her. She
argues these drugs were purchased outside the scope of the
conspiracy from an individual with whom she did not have contact.
However, the factual basis ascertained at Laura Oiler’s Fed. R.
Crim. P. 11 hearing established that she took part in the Oiler
family’s conspiracy to sell cocaine base. The Presentence
Investigation Report indicated that Laura Oiler obtained drugs on
a regular basis from Jonathan Oiler for distribution. It further
indicated that Laura Oiler was familiar with Jonathan Oiler’s
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supplier. Moreover, there is nothing in Jonathan Oiler’s statement
to indicate that the drugs were purchased for any use other than to
promote the object of the conspiracy. The drugs obtained by
Jonathan Oiler were therefore not only reasonably foreseeable to
Laura Oiler, but also served to further their jointly undertaken
criminal activity. See U.S. Sentencing Guidelines Manual
§ 1B1.3(a)(1)(B) (2006). Consequently, we conclude the district
court did not clearly err in its calculation of the total drug
weight attributable to Laura Oiler.
Both Jonathan and Laura Oiler contend that the district
court erred by refusing to apply downward adjustments for
acceptance of responsibility. Section 3E1.1 of the Sentencing
Guidelines provides for a downward adjustment to the offense level
if a defendant clearly demonstrates acceptance of responsibility.
Because a defendant who pleads guilty is not entitled to a downward
adjustment under § 3E1.1 as a matter of right, the Guidelines
provide a non-exhaustive list of factors to be considered in
determining whether the adjustment should be applied, including
whether a defendant has voluntarily terminated or withdrawn from
criminal conduct. See USSG § 3E1.1, comment. (n.1(b)), (n.3)
(2006). “The sentencing judge is in a unique position to evaluate
a defendant’s acceptance of responsibility,” therefore his
determinations are “entitled to great deference on review.” Id. at
comment. (n.5).
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It is undisputed that both Jonathan and Laura Oiler
continued to use cocaine subsequent to indictment. Jonathan Oiler
additionally stole money from the Government while working as a
confidential source. Based on the Oilers’ failure to disengage
themselves from criminal conduct, the district court determined
that their behavior was inconsistent with acceptance of
responsibility and refused to apply downward adjustments. Under
these circumstances, we conclude the district court’s
determinations were not in error. See, e.g., United States v.
Kidd, 12 F.3d 30, 34 (4th Cir. 1993).
We therefore affirm the judgments of the district court.
We deny the motion for leave to file a supplemental brief.* 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
*
The Oilers move this court for leave to file a supplemental
brief to include argument addressing Amendment 706 of the
Sentencing Guidelines. As we have previously noted, it is for the
district court to first assess pursuant to 18 U.S.C. § 3582(c)(2)
(2000) whether and to what extent defendants may be affected by
Amendment 706. See United States v. Brewer, 520 F.3d 367, 373 (4th
Cir. 2008).
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