United States v. Deondre Russell

• Court: Court of Appeals for the Fourth Circuit
• Decided: October 4, 2024
• Docket: 23-4114
• Status: Unpublished

Opinion

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UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 23-4114

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DEONDRE MONTREAL RUSSELL,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Dever III, District Judge. (5:20-cr-00459-D-1)

Submitted: July 1, 2024 Decided: October 4, 2024

Before QUATTLEBAUM and BENJAMIN, Circuit Judges, and KEENAN, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Deondre Montreal Russell, Appellant Pro Se. David A. Bragdon, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

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PER CURIAM:

Deondre Montreal Russell appeals his convictions and 360-month sentence imposed

by the district court after a jury found him guilty of conspiracy to distribute and possess

with intent to distribute a quantity of cocaine and 28 grams or more of crack cocaine, in

violation of 21 U.S.C. §§ 841(b)(1)(B), 846, 851, and possession with intent to distribute

quantities of cocaine and crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C),

851. Russell proceeds pro se in this appeal. He argues that the district court lacked

jurisdiction over his prosecution; that his rights under the Speedy Trial Act (“STA”), 18

U.S.C. §§ 3161-3174, were violated; that the evidence did not support his conspiracy

conviction; and that the court erred in determining his offense level under the Sentencing

Guidelines. 1 Having carefully reviewed the claims raised in Russell’s informal briefs, we

affirm.

Russell first argues that the district court lacked jurisdiction, claiming that he did

not cause any harm to the United States or take actions affecting commerce. Because

Russell raises additional claims on appeal, none of which need detain us long. He 1

asserts that the district court erred in denying his pretrial motions to suppress and to dismiss the indictment. In these motions, Russell argued that the January 6, 2020, traffic stop violated his Fourth Amendment rights and that the Government violated Brady v. Maryland, 373 U.S. 83 (1963). The district court denied these motions as untimely. Because Russell does not challenge on appeal the district court’s timeliness determination, he has forfeited appellate review of the district court’s denial of the motions. 4th Cir. R. 34(b); see Jackson v. Lightsey, 775 F.3d 170, 177 (4th Cir. 2014) (noting importance of informal brief). To the extent Russell asserts that the district court should have reheard all his pro se motions after retained counsel withdrew, he provides no support for his argument. Furthermore, contrary to Russell’s contention, the Government’s response to several pretrial motions was not late. And, finally, Russell’s claim that he was forced to allow an attorney to represent him at a pretrial conference is belied by the record.

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Russell was charged with violating federal law by conspiring to distribute controlled

substances, in violation of 21 U.S.C. § 846, and possessing with intent to distribute

controlled substances, in violation of 21 U.S.C. § 841(b)(1)(C), the district court had

jurisdiction over Russell’s case. See 18 U.S.C. § 3231 (“The district courts of the United

States shall have original jurisdiction, exclusive of the courts of the States, of all offenses

against the laws of the United States.”).

Next, Russell summarily alleges that his STA rights were violated because he was

not brought to trial within 70 days of his initial appearance. “The [STA] requires that a

criminal defendant’s trial ‘commence within [70] days from the filing date . . . of the . . .

indictment, or from the date the defendant has appeared before a judicial officer of the

court in which such charge is pending, whichever date last occurs.” United States v. Pair,

84 F.4th 577, 582 (4th Cir. 2023) (quoting 18 U.S.C. § 3161(c)(1)), cert. denied, No. 23-

7232, 2024 WL 2709396 (U.S. May 28, 2024). However, “various periods of delay . . .

are excluded from the speedy trial clock.” Id. One such exception involves “ends-of-

justice continuances[ under] § 3161(h)(7)(A).” Id. “We review a district court’s decision

to exclude time under the [STA] de novo and its factual findings for clear error.” Id. We

have reviewed the STA claim and conclude that the district court did not err in granting

Russell’s multiple requests for continuances and extensions of time to file pretrial motions

on the ground that the ends of justice warranted the delay. Considering the time excludable

under § 3161(h)(7)(A), Russell was timely tried. We therefore reject this claim.

Russell also challenges his conspiracy conviction on several grounds. “We review

the sufficiency of the evidence de novo, sustaining the verdict if, viewing the evidence in

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the light most favorable to the Government, it is supported by substantial evidence.”

United States v. Wysinger, 64 F.4th 207, 211 (4th Cir.) (internal quotation marks omitted),

cert. denied, 144 S. Ct. 175 (2023). “Substantial evidence is that which a reasonable finder

of fact could accept as adequate and sufficient to support a conclusion of a defendant’s

guilt beyond a reasonable doubt.” United States v. Robinson, 55 F.4th 390, 401 (4th Cir.

2022) (internal quotation marks omitted); see United States v. Tillmon, 954 F.3d 628, 640

(4th Cir. 2019) (stating elements of 21 U.S.C. § 846 offense).

As Russell correctly asserts, he could not be deemed to conspire with the

confidential informant who arranged a controlled buy that ultimately did not occur. United

States v. Edmonds, 679 F.3d 169, 175 (4th Cir.), vacated on other grounds, 568 U.S. 803

(2012). Russell overlooks, however, that he dealt with the informant long before the

informant began cooperating with the Government. Trial testimony also established

Russell’s connection to another individual who was his source of supply for drugs.

Although Russell argues that the absence of controlled purchases from him during the

conspiracy’s time frame proved he did not participate in the conspiracy, “the crime of

conspiracy may exist and be punished whether . . . the substantive crime ensues.” United

States v. Mallory, 40 F.4th 166, 180 (4th Cir. 2022), cert. denied, 143 S. Ct. 1088 (2023).

With respect to Russell’s argument that the informant and other witnesses were not

credible, “[t]he jury, not the reviewing court, weighs credibility and resolves conflicts in

the evidence; and if the evidence supports different, reasonable interpretations, the jury

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decides which interpretation to believe.” 2 Wysinger, 64 F.4th at 211 (internal quotation

marks omitted). We therefore conclude that Russell’s challenges to the sufficiency of the

evidence are without merit.

Russell next challenges his 360-month sentence. “[We] review[] all sentences—

whether inside, just outside, or significantly outside the Guidelines range—under a

deferential abuse-of-discretion standard.” United States v. Torres-Reyes, 952 F.3d 147,

151 (4th Cir. 2020) (cleaned up). In conducting this review, we must first ensure that the

sentence is procedurally reasonable, “consider[ing] whether the district court properly

calculated the defendant’s advisory [G]uidelines range, gave the parties an opportunity to

argue for an appropriate sentence, considered the 18 U.S.C. § 3553(a) factors, and

sufficiently explained the selected sentence.” Id. (internal quotation marks omitted). If

there is no significant procedural error, then we consider the substantive reasonableness of

the sentence. Gall v. United States, 552 U.S. 38, 51 (2007).

Russell disputes the district court’s calculation of his total offense level. “We

review for clear error the district court’s calculation of drug weight for purposes of

establishing a defendant’s Sentencing Guidelines offense level.” United States v. Banks,

__ F.4th __, __, No. 19-4620(L), 2024 WL 2947272, at *18 (4th Cir. June 12, 2024); United

States v. Barronette, 46 F.4th 177, 209 (4th Cir.) (stating same standard of review for

2 In passing, Russell also asserts that the prosecutor defrauded the district court by presenting testimony from unreliable witnesses at the trial. Russell fails to establish prosecutorial misconduct. See United States v. Allen, 491 F.3d 178, 191 (4th Cir. 2007) (providing standard).

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sentencing enhancement under U.S. Sentencing Guidelines Manual § 2D1.1(b)(2) for

making credible threats of violence), cert. denied, 143 S. Ct. 414 (2022); United States v.

Manigan, 592 F.3d 621, 626 (4th Cir. 2010) (stating same standard of review for sentencing

enhancement under USSG § 2D1.1(b)(1) for possession of a firearm). “Sentencing judges

may find facts relevant to determining a Guidelines range by a preponderance of the

evidence, so long as that Guidelines sentence is treated as advisory and falls within the

statutory maximum authorized by the jury’s verdict.” United States v. Medley, 34 F.4th

326, 335 (4th Cir. 2022) (internal quotation marks omitted). Thus, a district court may

consider uncharged or acquitted conduct at sentencing without violating the defendant’s

constitutional rights. Id.; see Banks, 2024 WL 2947272, at *18.

Here, the district court properly considered methamphetamine in the drug-quantity

calculation, and the court appropriately used a conservative estimate of the amount of

methamphetamine for which Russell was held accountable. See Banks, 2024 WL 2947272,

at *18; Medley, 34 F.4th at 335-36. Russell also challenges the USSG § 2D1.1(b)(1), (2)

enhancements, arguing that they were based on an unreliable source. 3 However, we accord

great deference to the district court’s credibility determinations at sentencing. See United

States v. Layton, 564 F.3d 330, 334 (4th Cir. 2009). We therefore conclude that the

3 To the extent Russell contends that a jury should have determined whether the USSG § 2D1.1(b)(2) enhancement applied, his claim fails because application of the enhancement did not increase the statutory range of punishment prescribed by the jury’s verdict. See Erlinger v. United States, __ S. Ct. __, No. 23-370, 2024 WL 3074427, at *7 (U.S. June 21, 2024) (recognizing that “a fact that increases a defendant’s exposure to punishment, whether by triggering a higher maximum or minimum sentence, must be submitted to a jury and found unanimously and beyond a reasonable doubt” (cleaned up)).

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sentence is procedurally reasonable and that Russell fails to rebut the presumption of

substantive reasonableness accorded his sentence, which was below the Guidelines range

established by the district court. See United States v. Devine, 40 F.4th 139, 153 (4th Cir.

2022), cert. denied, 143 S. Ct. 790 (2023); United States v. Bennett, 986 F.3d 389, 401 (4th

Cir. 2021).

Russell argues that the Government sought the § 851 enhancement in retaliation for

his pleading not guilty. 4 Because Russell failed to raise this claim in the district court, we

review for plain error only. United States v. McCabe, 103 F.4th 259, 279 (4th Cir. 2024)

(stating standard of review and providing standard). Our review of the record leads us to

conclude that the Government timely filed the § 851 notice and that Russell’s claim is

without merit. See United States v. Wilson, 262 F.3d 305, 314 (4th Cir. 2001) (providing

standard for prosecutorial vindictiveness).

Finally, Russell asserts that his counsel provided ineffective assistance by refusing

to bring certain claims. Claims of ineffective assistance of counsel generally are not

cognizable on direct appeal and instead should be raised in a motion brought pursuant to

28 U.S.C. § 2255, United States v. Jordan, 952 F.3d 160, 163 n.1 (4th Cir. 2020), to permit

sufficient development of the record, United States v. Baptiste, 596 F.3d 214, 216 n.1 (4th

Cir. 2010). Such claims warrant relief only when ineffective assistance conclusively

4 Russell also appears to argue that he should not have been charged as an adult for his prior second-degree murder conviction on which the § 851 notice relied. However, “federal sentencing proceedings are generally not the appropriate vehicle for mounting collateral attacks on the validity of prior convictions.” United States v. Dean, 604 F.3d 169, 174 (4th Cir. 2010). 7 USCA4 Appeal: 23-4114 Doc: 36 Filed: 10/04/2024 Pg: 8 of 8

appears on the record. United States v. Freeman, 24 F.4th 320, 326 (4th Cir. 2022) (en

banc). Because Russell fails to meet this demanding standard, we decline to review his

ineffective assistance claims in this appeal.

Accordingly, we affirm the criminal judgment. We grant Russell’s motion to submit

his case on the briefs without oral argument because the facts and legal contentions are

adequately presented in the materials before this court and argument would not aid the

decisional process.

AFFIRMED