United States v. Eric Hellams, Jr.

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-5008
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ERIC HELLAMS, JR., a/k/a Eric Hellams,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Alexander Williams, Jr., District
Judge. (8:10-cr-00303-AW-1; 8:10-cr-00304-AW-1)
Submitted: August 30, 2012 Decided: September 14, 2012
Before DAVIS, KEENAN, and FLOYD, Circuit Judges.
Dismissed in part, affirmed in part by unpublished per curiam
opinion.
Megan E. Green, MARCUSBONSIB, LLC, Greenbelt, Maryland, for
Appellant. Mara Zusman Greenberg, OFFICE OF THE UNITED STATES
ATTORNEY, Arun G. Rao, Assistant United States Attorney,
Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Eric Hellams, Jr., pled guilty, pursuant to a plea
agreement, to conspiracy to commit mail fraud, in violation of
18 U.S.C. § 1349 (2006), conspiracy to distribute and possess
with intent to distribute 100 grams or more of heroin, in
violation of 21 U.S.C. § 846 (2006), and conspiracy to commit
money laundering, in violation of 18 U.S.C. § 1956(h) (2006).
He was sentenced to 121 months’ imprisonment, and he appeals.
Hellams’ counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), stating that there are no
meritorious issues for appeal, but questioning whether the
district court erred in sentencing Hellams for one kilogram or
more of heroin based upon a conversion of cash to drugs where no
drug seizure occurred. Hellams, advised of his right to file a
pro se supplemental brief, did not do so. The Government has
moved to dismiss the appeal in part, based on the waiver of
appellate rights in Hellams’ plea agreement. We grant the
motion for partial dismissal, affirm in part, and dismiss in
part.
A defendant may waive the right to appeal if that
waiver is knowing and intelligent. United States v. Manigan,
592 F.3d 621, 627 (4th Cir. 2010). Generally, if the district
court fully questions a defendant regarding the waiver of his
right to appeal during the Fed. R. Crim. P. 11 colloquy, the
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waiver is valid and enforceable. United States v. Johnson, 410
F.3d 137, 151 (4th Cir. 2005); United States v. General, 278
F.3d 389, 400-01 (4th Cir. 2002). Whether a defendant validly
waived his appeal rights is a question of law, which this court
reviews de novo. Manigan, 592 F.3d at 626.
Our review of the record leads us to conclude that
Hellams knowingly and voluntarily waived the right to appeal his
conviction. We therefore grant the Government’s motion for
partial dismissal, and dismiss the appeal of Hellams’
conviction. *
Hellams retained his right to appeal any sentence of
over seventy-eight months’ imprisonment. Therefore, we may
review Hellams’ challenge to his 121-month sentence. Hellams
questions whether the district court erroneously calculated the
drug quantity attributable to him for sentencing purposes.
Hellams challenges the calculation of the Guidelines range by
questioning whether the district court erred in converting the
cash seized from him into heroin in determining drug quantity
under USSG § 2D1.1. We review this issue for clear
error. United States v. Kiulin, 360 F.3d 456, 461 (4th Cir.
2004) (district court did not clearly err in calculating drug
*
We discern no potentially meritorious challenge to the
conviction that would be outside the scope of the waiver. See
United States v. Poindexter, 492 F.3d 263, 270 (4th Cir. 2007).
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quantity by converting cash to its drug equivalent based on
valuation of ecstasy at $20 per pill); United States v. Hicks,
948 F.2d 877, 881, 883 (4th Cir. 1991) (district court did not
clearly err in calculating drug quantity by converting cash
seized to cocaine equivalent).
“Types and quantities of drugs not specified in the
count of conviction may be considered in determining the offense
level.” USSG § 2D1.1 cmt. n.12. Moreover, “[w]here there is no
drug seizure or the amount seized does not reflect the scale of
the offense, the court shall approximate the quantity of the
controlled substance”; “[i]n making this determination, the
court may consider, for example, the price generally obtained
for the controlled substance.” Id.; see also Hicks, 948 F.2d at
881-82. “Neither the Guidelines nor the courts have required
precise calculations of drug quantity.” United States v.
Uwaeme, 975 F.2d 1016, 1019 (4th Cir. 1992).
Cash is properly converted to drug equivalents when it
is part of the same course of conduct, either because it is the
proceeds of drug sales or would be used to purchase more drugs
in the future. Hicks, 948 F.2d at 882-83. “A district court
may properly convert cash amounts linked credibly to the
defendant’s purchase or sale of narcotics so long as the court
does not engage in double counting of both the proceeds and the
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narcotics themselves.” United States v. Sampson, 140 F.3d 585,
592 (4th Cir. 1998).
The Government must prove the drug quantity
attributable to a defendant by a preponderance of the
evidence. United States v. Carter, 300 F.3d 415, 425 (4th Cir.
2002). In Kiulin, this Court rejected contrary authority from
other circuits and held “that a district court need not ‘err,’
on the side of caution or otherwise” when “approximating drug
quantity”; rather, “it must only determine that it was more
likely than not that the defendant was responsible for at least
the drug quantity attributed to him.” Kiulin, 360 F.3d at 461.
Moreover, when objecting to drug quantities as set forth in the
presentence report, the defendant has an affirmative duty to
show that the information contained in the report is inaccurate
or unreliable. Id. at 461-62; Carter, 300 F.3d at 425.
Applying these standards, we find that the sentencing
court acted within its discretion by converting currency found
in Hellams’ possession upon his arrest into its drug
equivalency. We have carefully reviewed the record and conclude
that the Government satisfied its burden of demonstrating by a
preponderance of the evidence the connection between the money
seized and Hellams’ drug-related activity. Thus, the district
court did not err by converting the seized money into its drug
equivalency for sentencing purposes under USSG § 2D1.1.
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In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues outside the
scope of the appeal waiver. We therefore affirm Hellams’
conviction and dismiss the appeal of his sentence. This Court
requires that counsel inform Hellams, in writing, of the right
to petition the Supreme Court of the United States for further
review. If Hellams requests that a petition be filed, but
counsel believes that such a petition would be frivolous, then
counsel may move in this Court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Hellams. 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.
DISMISSED IN PART;
AFFIRMED IN PART
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