United States v. Kendall Wilkins ( 2020 )

Case: 19-30883 Document: 00515460512 Page: 1 Date Filed: 06/22/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 19-30883 June 22, 2020
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
KENDALL WYNNE WILKINS, also known as Kendall White,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 1:18-CR-221-3
Before WIENER, HAYNES, and COSTA, Circuit Judges.
PER CURIAM: *
Kendall Wynne Wilkins appeals his guilty plea conviction of and
sentence for conspiracy to possess with intent to distribute heroin. See 21
U.S.C. §§ 841(a)(1), (b)(1)(B)(i), 846. According to Wilkins, the Government
breached the plea agreement when the district court attributed 448 grams of
heroin to him for purposes of calculating his advisory sentence under
Sentencing Guidelines because the Government had agreed to attribute only
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 19-30883 Document: 00515460512 Page: 2 Date Filed: 06/22/2020
No. 19-30883
the narcotics involved in a 60-day period during the conspiracy. Because
neither the clear language of the written plea agreement nor anything the
Government said at the rearraignment hearing included an agreement
regarding the attributable drug weight, Wilkins fails to show clearly or
obviously that a reasonable understanding of the agreement involved such an
accord as to drug weight. See United States v. Tapia, 946 F.3d 729, 733 (5th
Cir. 2020); United States v. Pizzolato, 655 F.3d 403, 409 (5th Cir. 2011).
Wilkins also asserts that the district court clearly erred in calculating
his advisory guidelines sentence based on 448 grams of heroin and by
increasing his offense level by two based on his role in the offense. The drug
weight used by the district court is plausible in light of the unrebutted evidence
that Wilkins was responsible for 448 grams of heroin in the 60-day period
during which officers investigated Wilkins’s role in supplying drugs to multiple
individuals, including not only Rex Countee, as he admits, but also Howard
White. See United States v. Betancourt, 422 F.3d 240, 246 (5th Cir. 2005); see
also United States v. Harris, 702 F.3d 226, 230 (5th Cir. 2012).
Wilkins likewise fails to show that the district court clearly erred in
adding two levels to his offense level because he acted as an organizer, leader,
manager, or supervisor in an organization involving fewer than five
participants and otherwise not extensive. See U.S.S.G. § 3B1.1(c); United
States v. Ochoa-Gomez, 777 F.3d 278, 281 (5th Cir. 2015). The uncontroverted
evidence showed that Wilkins would drive to Houston, Texas, to buy quantities
of heroin with which he returned to the Alexandria, Louisiana area to supply
to multiple individuals, including Countee and White; that Wilkins used his
girlfriend’s home to store the heroin; and that Wilkins directed a confidential
informant to sell drugs for money. These facts plausibly support a conclusion
that Wilkins exercised decision-making authority over the acquisition, storage,
2
Case: 19-30883 Document: 00515460512 Page: 3 Date Filed: 06/22/2020
No. 19-30883
and provision of heroin to others, as well as a degree of authority over other
participants in the conspiracy. See Ochoa-Gomez, 777 F.3d at 283; § 3B1.1,
comment. (n.4); see also United States v. Turner, 319 F.3d 716, 725 (5th Cir.
2003).
In his last assignment of error, Wilkins asserts that omissions and
inconsistencies as to the plea documents, particularly the written elements of
the offense, as well as the stressful and confusing circumstances of the
rearraignment hearing, rendered his plea hearing fundamentally unfair
though very few details are provided. We review this unpreserved issue only
for plain error. See United States v. Vonn, 535 U.S. 55, 58-59 (2002). Wilkins’s
ambiguous statements on this point suggests that he acknowledges that the
alleged omissions and inconsistencies in the written statement of elements
were not “a material factor affecting [his] decision to plead guilty.” United
States v. Reyes, 300 F.3d 555, 558 (5th Cir. 2002) (internal quotation marks
and citation omitted). In any event, however, the record establishes that the
district court recited the elements of the offense; confirmed that Wilkins
understood the nature of the charge, did not need to review the charge again,
and had reviewed the indictment itself and discussed it with his attorney; and
confirmed that Wilkins’s guilty plea was knowing, voluntary, and not the
result of threats or coercion. See FED. R. CRIM. P. 11. Wilkins fails to overcome
the presumption of veracity accorded his sworn declarations in open court, see
Blackledge v. Allison, 431 U.S. 63, 74 (1977), and fails to show a clear and
obvious error in the Rule 11 colloquy that resulted in his guilty plea, see Reyes,
300 F.3d at 558.
The judgment of the district court is AFFIRMED.
3