United States v. Theola Blackmon

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 09-1363
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Theola A. Blackmon, *
* [UNPUBLISHED]
Appellant. *
___________
Submitted: December 14, 2009
Filed: April 30, 2010
___________
Before RILEY,1 Chief Judge, WOLLMAN and MELLOY, Circuit Judges.
___________
PER CURIAM.
Theola A. Blackmon pled guilty to conspiring to distribute and possess with the
intent to distribute marijuana and at least five kilograms of cocaine, in violation of 21
U.S.C. §§ 841(a)(1), (b)(1)(A)(ii)(II), and 846 (Count I), and conceded the
applicability of the criminal forfeiture provisions of 21 U.S.C. § 853 (Count III). The
district court sentenced Blackmon to a statutory minimum 120 months imprisonment
and 5 years supervised release. Blackmon appeals his sentence.
1
The Honorable William Jay Riley became Chief Judge of the United States
Court of Appeals for the Eighth Circuit on April 1, 2010.
Blackmon first challenges the district court’s finding Blackmon was ineligible
for safety valve relief pursuant to 18 U.S.C. § 3553(f)(5) and U.S.S.G. § 5C1.2(a)(5)
because the district court accepted the government’s recommendation that Blackmon
was not truthful in his proffer interviews. “The district court’s safety valve findings
can be overturned only if they are clearly erroneous.” United States v.
Alvarado-Rivera, 412 F.3d 942, 947 (8th Cir. 2005) (en banc) (citation omitted).
In his plea, Blackmon acknowledged shipping packages of cocaine and packages
of marijuana from California to St. Louis, Missouri, and Blackmon later attempted to
limit his admission to shipping marijuana only. Blackmon contends the district court
clearly erred in finding the drug shipment quantities, arguing a substantial difference
existed between the package weights the government’s case agent identified and the
weights reported by the packaging company, which difference seriously undermined
the agent’s credibility. Blackmon suggests, because of the discrepancy, the district
court should have granted him safety valve relief, presumably because the government
witness’s testimony was demonstrably unreliable. We note “[w]itness credibility is
‘quintessentially a judgment call and virtually unassailable on appeal.’” United States
v. Bolden, 596 F.3d 976, 982 (8th Cir. 2010) (quoting United States v. Sicaros-
Quintero, 557 F.3d 579, 582 (8th Cir. 2009)). We conclude the district court’s
credibility determination here is unassailable.
Even if all of the case agent’s testimony were disregarded, ample evidence still
supports the district court’s finding. For example, Blackmon pled guilty to conspiring
to distribute five kilograms of cocaine, yet at the proffer interviews he admitted to, at
most, three kilograms, and at allocution denied knowing about cocaine shipments at
all.2 Similarly, Blackmon suggested two of his coconspirators, Jeffrey Hill and Juan
2
Blackmon filed various letters before the district court and before this court
asserting, among other things, that his counsel lied to him and coerced him into
pleading guilty. Ineffective assistance of counsel claims “are usually best litigated in
-2-
Avendano, were conducting drug transactions without Blackmon’s involvement, but
telephone records and a tape recorded conversation between Blackmon and Hill
contradicted this contention. The district court’s finding was not clearly erroneous.
Blackmon also argues the district court erred in denying him safety valve relief
because the court erroneously believed it was bound by the government’s
determination as to Blackmon’s truthfulness at the proffer hearings. Because
Blackmon failed to raise this issue at sentencing, we review for plain error. See United
States v. Lewis, 593 F.3d 765, 772 (8th Cir. 2010) (citing Fed. R. Crim. P. 52(b)).
Before we
correct an error not raised at trial, there must be (1) error, (2) that is plain,
and (3) that affects substantial rights. If all three conditions are met, [we]
may then exercise [our] discretion to notice a forfeited error, but only if
(4) the error seriously affects the fairness, integrity, or public reputation
of judicial proceedings.
United States v. Pirani, 406 F.3d 543, 550 (8th Cir. 2005) (quoting Johnson v. United
States, 520 U.S. 461, 466-67 (1997)). Although we agree with Blackmon that the
district court erred when it repeatedly stated it lacked authority to find Blackmon was
safety valve eligible, see 18 U.S.C. § 3553(f) (“[T]he court shall impose a sentence
pursuant to [the Guidelines] without regard to any statutory minimum sentence, if the
court finds [the safety valve factors] at sentencing, after the Government has been
afforded the opportunity to make a recommendation.” (emphasis added)), the error did
not affect either his substantial rights or the fairness, integrity, or public reputation of
the proceeding. Our review of the record supports the conclusion that the district court
would have denied Blackmon safety valve relief regardless of this issue. Because
Blackmon’s substantial rights were not violated, and because of the overwhelming
evidence of Blackmon’s duplicitousness during the proffer interviews, we decline to
collateral proceedings.” United States v. Ramirez-Hernandez, 449 F.3d 824, 826-27
(8th Cir. 2006). We therefore decline to address the issue on this direct appeal.
-3-
exercise our discretion to notice the error in this case. See Puckett v. United States,
556 U.S. __, 129 S. Ct. 1423, 1429 (2009) (observing our “discretion to remedy [plain]
error . . . ought to be exercised only if the error seriously affects the fairness, integrity
or public reputation of judicial proceedings.” (quoting United States v. Olano, 507 U.S.
725, 736 (1993) (internal marks omitted)).
We affirm the district court’s judgment.
______________________________
-4-