United States v. Anthony Tatum

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4460
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ANTHONY TORELL TATUM, a/k/a Anthony Tatum, a/k/a Brandon
Ross, a/k/a Short Dog,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Deborah K. Chasanow, Senior District
Judge. (8:13-cr-00492-DKC-1)
Submitted: May 11, 2016 Decided: June 10, 2016
Before DUNCAN and FLOYD, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Richard A. Finci, Jennifer L. Mayer, HOULON, BERMAN, FINCI,
LEVENSTEIN & SKOK, LLC, Greenbelt, Maryland, for Appellant.
Rod J. Rosenstein, United States Attorney, Thomas P. Windom,
Deborah A. Johnston, Assistant United States Attorneys,
Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Anthony Torell Tatum appeals his 324-month sentence entered
pursuant to his guilty plea to a drug and money laundering
conspiracy and a firearm charge. On appeal, Tatum contends that
the district court erred in calculating the drug quantity
attributable to him as at least 150 kilograms of cocaine. We
affirm.
Under the Sentencing Guidelines in effect at the time of
Tatum’s sentencing, a defendant convicted of conspiring to
distribute controlled substances is accountable for all
quantities of contraband with which he was directly involved
and, in the case of a jointly undertaken criminal activity, all
reasonably foreseeable quantities of contraband that were in
furtherance of the joint criminal conduct. U.S. Sentencing
Guidelines Manual § 1B1.3 cmt. n.2 (2014). The Government must
prove the drug quantity attributable to the defendant by a
preponderance of the evidence. United States v. Carter, 300
F.3d 415, 425 (4th Cir. 2002). The district court may rely on
information in the presentence report unless the defendant
affirmatively shows that the information is inaccurate or
unreliable. Id. A district court’s findings on drug quantity
are generally factual in nature, and therefore we review for
clear error. Id.2
Tatum avers that his drug quantity should be limited to the
amount to which he pled guilty. He raises numerous arguments
attacking the reliability and relevance of the Government’s
evidence at sentencing. In the district court, he provided no
evidence or argument as to the actual scope of his participation
in the drug conspiracy to which he pled guilty; instead, he
rested on the Government’s alleged lack of proof and the
district court’s alleged failure to properly consider the
evidence.
We find that the evidence clearly shows that Tatum was
responsible for at least 150 kilograms of cocaine. Further, the
evidence is so overwhelming that most of Tatum’s arguments fail
to cut to the heart of the matter and just operate to obfuscate
the issue. Specifically, Tatum admitted in the statement of
facts attached to his plea agreement that over $220,000 of cash
deposits in the bank accounts of his businesses were “virtually
all” drug proceeds. According to the affidavit of Special Agent
Buckel, also submitted at sentencing, distribution of a kilogram
of cocaine will net, at a minimum, $1000. Thus, this $220,000
in drug proceeds easily represents more than 150 kilograms of
cocaine. Notably, this calculation does not even consider the
wealth of other evidence of drug quantity, including money Tatum
used to purchase luxury items, the cocaine seized during the
investigation, the fact that the profits were likely above the
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minimum, or any other “reasonably foreseeable” actions by any
members of the conspiracy.
In his brief, Tatum avers that his businesses were
legitimate and ongoing, even though “at least a part” of the
cash deposits were drug proceeds. Tatum also states that one
business reported $200,000 in income on its 2012 tax returns and
that a private investigator submitted evidence that Tatum ran a
legitimate business. However, Tatum signed the statement of
facts agreeing that “[a]ll, or virtually all, of the cash
deposits were proceeds from the drug conspiracy.” Thus, even to
the extent that, aside from the listed cash deposits, Tatum made
other deposits or profits due to his legitimate business, such
would be irrelevant to his agreement that “virtually” $220,000
worth of deposits were drug related. Moreover, there is no
evidence in the record that the $200,000 income reported to the
IRS was actually due to legitimate income, and the investigator
could not locate records sufficient to provide an estimate as to
Tatum’s income.
Tatum also contends that the Government failed to have an
expert testify as to the proper conversion of cash into cocaine
amounts. To the contrary, however, the Government presented
Buckel’s affidavit providing detailed conversion amounts, the
most conservative of which still shows that Tatum was
responsible for well over 150 kilograms of cocaine. Moreover,
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the district court was not required to determine how much of the
income was legitimate and how much should be considered drug
proceeds, given that Tatum admitted that “virtually all” of the
listed proceeds were from the drug conspiracy. Tatum does not
challenge Buckel’s testimony of pricing and profits or provide
any evidence of his own estimates.
Tatum’s other arguments are nearly wholly irrelevant given
his admissions. Tatum contends that the district court failed
to make particularized findings regarding the scope of his
conspiracy and the quantity of cocaine involved. The court also
allegedly failed to make a finding regarding how much of the
co-conspirators’ conduct was reasonably foreseeable to Tatum.
Tatum also challenges Buckel’s statements regarding information
from informants. Tatum alleges that the statements are
insufficiently corroborated and that he was not able to
challenge the evidence given that the informants were not
identified. Tatum also asserts that certain cocaine amounts and
cash (not his bank accounts) listed in the statement of facts
were never tied to him and that the district court’s conclusions
were entirely speculative. As discussed above, however, even
removing much of this evidence, the 150 kilogram threshold is
easily obtained. As such, any district court error in these
regards would not render the drug amount clearly erroneous,
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given the overwhelming evidence against Tatum. Accordingly, we
will not address each issue separately.
Tatum has also filed several pro se supplemental briefs.
We deny his motions to file these briefs. See United States v.
Penniegraft, 641 F.3d 566, 569 n.1 (4th Cir. 2011) (denying
motion to file pro se supplemental brief where appellant had
counsel and appeal not filed pursuant to Anders v. California,
386 U.S. 738 (1967)); see also Myers v. Johnson, 76 F.3d 1330,
1335 (5th Cir. 1996) (“By accepting the assistance of counsel
the criminal appellant waives his right to present pro se briefs
on direct appeal.”).
We affirm Tatum’s sentence. 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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