Fourth Circuit Affirms Walker's Sentence
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Scribd Government DocsUNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4167
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SHOUNTARIO DEVON WALKER,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
James C. Fox, Senior
District Judge. (5:12-cr-00298-F-1)
Submitted:
January 30, 2014
Decided:
February 21, 2014
Before DAVIS, KEENAN, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Geoffrey W. Hosford, HOSFORD & HOSFORD, P.C., Wilmington, North
Carolina, for Appellant.
Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Yvonne V. Watford-McKinney,
Assistant United States Attorneys, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Shountario
Devon
Walker
pled
guilty
without
plea
agreement to possession with intent to distribute fifty grams or
more of cocaine (Count One), and distribution of cocaine (Counts
Two through Seven).
Based on a total offense level of thirty-
one and a criminal history category of V, Walkers Guidelines
range was 168 to 210 months imprisonment.
the
presentence
attributed
amounts
to
came
report
(PSR),
him
as
relevant
from
an
unreliable
Walker objected to
challenging
conduct,
the
arguing
source.
The
drug
that
amount
certain
district
court
overruled the objection and sentenced Walker to 180 months on
each count to run concurrently.
Walkers sole claim on appeal is that his sentence is
procedurally unreasonable because the district court erred in
calculating
his
Guidelines
improperly
determined
purposes.
Walkers
range,
drug
claim
namely,
amounts
is
for
two-fold:
that
the
relevant
(1)
the
court
conduct
statement
of
cooperating witness Costa Pender was incredible and unreliable;
and (2) the Government failed to timely produce the identities
of
the
witnesses
who
participated
in
the
offense
that
the
evidence
conduct
as
stated in the PSR.
First,
Walker
contends
supporting
the determination of his offense level was fatally unbelievable
and
insufficient
to
carry
the
2
Governments
burden
of
proof
because it consisted solely of the uncorroborated hearsay of an
unreliable cooperating witness.
[T]he government must prove
the drug quantity attributable to a particular defendant by a
preponderance of the evidence.
431,
441
(4th
Cir.
2011).
United States v. Bell, 667 F.3d
We
review
the
district
courts
calculation of the quantity of drugs attributable to a defendant
for
sentencing
purposes
for
clear
error.
United
States
v.
Crawford, 734 F.3d 339, 342 (4th Cir. 2013); see also United
States
v.
Perez,
609
F.3d
609,
612
(4th
Cir.
2010)
(when
assessing a challenge to the district courts application of the
Guidelines, this court reviews factual findings for clear error
and legal conclusions de novo).
Under this standard, we will
reverse the district courts finding only if we are left with
the
definite
committed.
and
firm
conviction
that
mistake
has
been
Crawford, 734 F.3d at 342 (internal quotation marks
and citation omitted).
When determining facts relevant to sentencing, such as
drug
quantity,
district
courts
are
allowed
to
consider
relevant information without regard to its admissibility under
the rules of evidence applicable at trial, provided that the
information has sufficient indicia of reliability to support its
probable
Sentencing
accuracy.
Guidelines
Crawford,
Manual
734
at
6A1.3(a)
342
(quoting
(2012)).
In
U.S.
fact,
hearsay alone can provide sufficiently reliable evidence of drug
3
quantity.
Crawford, 734 F.3d at 342; see also United States v.
Wilkinson, 590 F.3d 259, 269 (4th Cir. 2010) ([A] sentencing
court may give weight to any relevant information before it,
including uncorroborated hearsay, provided that the information
has
sufficient
accuracy.).
district
indicia
Having
court
did
of
reliability
reviewed
not
the
clearly
to
record,
err
in
we
support
its
conclude
the
finding
that
the
Government established drug quantity by a preponderance of the
evidence and that the disputed evidence had sufficient indicia
of reliability.
Walker
also
challenges
the
district
courts
consideration of the witnesses statements in the PSR as to drug
quantity
on
the
ground
that
the
Government
failed
disclose the identity of the cooperating witnesses.
to
timely
Because
Walker did not object on this basis below, we review this claim
for plain error.
(1993).
See United States v. Olano, 507 U.S. 725, 732
To establish plain error, Walker must show: (1) that an
error was made; (2) that the error was plain; and (3) that the
error
affected
his
substantial
rights.
United
Carthorne, 726 F.3d 503, 510 (4th Cir. 2013).
States
v.
Walker has not
satisfied this standard.
In support of this contention, Walker argues that the
district
court
erred
in
relying
on
certain
statements
by
cooperating witnesses that were not provided to him until after
4
the first draft of the PSR and approximately one month before
sentencing.
We
conclude
Walker
cannot
show
plain
error
as
defense counsel was able to fully cross examine the Governments
witnesses
regarding
their
cooperating
witnesses.
substantial
rights
were
interviews
Therefore,
affected
by
with
Walker
any
the
cannot
untimely
relevant
show
his
disclosure.
See also United States v. Williams, 977 F.2d 866, 871 (4th Cir.
1992) ([A] defendant has no right under the guidelines or the
federal
rules
to
receive
information
about
guideline
ranges
prior to trial.).
Accordingly, we affirm the judgment.
motion to file a pro se supplemental brief.
oral
argument
adequately
because
presented
in
the
the
facts
and
materials
legal
before
We deny Walkers
We dispense with
contentions
this
court
are
and
argument would not aid the decisional process.
AFFIRMED
