United States v. Kevin Klarell Washington

248 F. App'x 86
CourtCourt of Appeals for the Eleventh Circuit
DecidedSeptember 11, 2007
Docket06-16482, 06-16483
StatusUnpublished

This text of 248 F. App'x 86 (United States v. Kevin Klarell Washington) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Kevin Klarell Washington, 248 F. App'x 86 (11th Cir. 2007).

Opinion

PER CURIAM:

In this consolidated appeal, Kevin Klarell Washington (“Kevin”) and Lavonnia Washington (“Lavonnia”) appeal their sentences imposed after pleading guilty to distributing crack cocaine (Kevin), sending a false distress signal to the United States Coast Guard (Kevin), and making false declarations before a grand jury (Lavonnia). For the reasons that follow, we affirm.

*88 I. BACKGROUND

A. Offense Conduct

In July 2006, a federal grand jury indicted Kevin and his wife Lavonnia in a ten-count indictment. Pursuant to a written plea agreement, Kevin pleaded guilty to one count of distributing crack cocaine, in violation of 21 U.S.C. § 841(a)(1), and one count of sending a false distress message to the Coast Guard, in violation of 14 U.S.C. § 88(c). Lavonnia pleaded guilty to making false declarations before a grand jury, in violation of 18 U.S.C. § 1623.

According to the presentence investigation reports (“PSI”), a confidential informant purchased crack cocaine from Kevin in Savannah, Georgia on five occasions between late 2004 and early 2005. In August 2005, agents with the Drug Enforcement Administration (“DEA”) traveled to the Washingtons’ home and seized two vehicles that had been used to facilitate drug sales. The next day, the Washingtons met with DEA agents and learned that evidence would soon be presented to the grand jury regarding Kevin’s involvement in selling crack cocaine. The agents offered Kevin the opportunity to assist in the DEA’s investigation of other suspects. Kevin asked for time to consider the offer.

On September 13, 2005, Lavonnia’s brother, Timothy Sapp, initiated an emergency distress call to the Coast Guard and reported that Kevin had fallen overboard from a fishing vessel into the Wilmington River. Over the next 48 hours, the Coast Guard conducted an extensive search for Kevin, using boats, helicopters, and an airplane, but they did not find Kevin. The Coast Guard expended a total of $314,019 during the unsuccessful search. On September 28, 2005, Lavonnia contacted the DEA and solicited the agency to pay $33,000 for a diver to continue to search for Kevin’s body. The DEA refused.

On October 1, 2005, a memorial service was held for Kevin at a church in Savannah. Several friends and family members spoke about Kevin, and after the ceremony, the family placed a wreath in the Wilmington River to memorialize his life.

Federal agents, however, remained suspicious of the timing and circumstances of Kevin’s disappearance. Believing that Kevin was still alive, agents with the Coast Guard served Sapp a subpoena to appear before a federal grand jury in Savannah. In response, Sapp admitted to the agents that Kevin had staged his death by jumping off of the fishing vessel and boarding the boat of a friend who transported him ashore. Once Kevin reached the shore, he was driven by friends and family to Columbia, South Carolina, where he stayed for two weeks in a motel room rented for him by Lavonnia. Sapp then drove Kevin from Columbia to Yemassee, South Carolina, where he was reunited with Lavonnia. Thereafter, Kevin traveled to Virginia and then to Orlando, Florida. At some point, he assumed a false identity using forged documents.

On June 9, 2006, Lavonnia testified before the grand jury that she believed Kevin was dead and that she had not seen him since several days before the September 2005 accident.

Kevin was ultimately captured and arrested in Orlando, Florida on June 21, 2006. After Kevin’s arrest, Lavonnia admitted that she had always known Kevin was alive and that she had seen him since the feigned boating accident.

B. Kevin’s Sentence

In the PSI, the probation officer calculated Kevin’s offense level for the cocaine-distribution offense as 34, including a two-level enhancement for obstruction of justice, pursuant to U.S.S.G. § 3C1.1. Find *89 ing U.S.S.G. § 2B1.1 (which pertains to economic offenses) to be the most appropriate Guideline for Kevin’s false-distress-signal offense, the probation officer assessed Kevin’s offense level as 18, including a 12-level enhancement for the $814,019 amount of loss incurred by the Coast Guard. Pursuant to U.S.S.G. § 3D1.2, Kevin’s offenses were grouped together, resulting in an adjusted offense level for the group of 34 (as the highest adjusted offense level of the offenses in the group). The probation officer then assessed a three-level reduction for acceptance of responsibility, pursuant to U.S.S.G. § 3El.l(a), resulting in a total offense level of 31.

Regarding Kevin’s criminal history, the probation officer stated that Kevin was sentenced to six years’ probation on July 26, 1995 in state court after he pleaded guilty to cocaine possession. That probation was revoked upon Kevin’s arrest for marijuana possession in February 1996, and he was imprisoned for 60 days. In November 1999, Kevin was arrested for selling cocaine, and on April 7, 2000, he pleaded guilty to the sale of a controlled substance and possession of a controlled substance with intent to distribute. On that same day, Kevin’s probation for his 1995 cocaine-possession conviction was revoked for the balance of the term, which the probation officer calculated as “one year, three months, and 19 days.” In an addendum to the PSI, the probation officer acknowledged that there were no state court records documenting precisely what constituted “the balance” of Kevin’s probation at the time of the April 2000 revocation. Given the unavailability of the record, the probation officer “simply subtracted the amount of time [Kevin] had served on probation from the amount of time originally imposed.” Because the ealculated term of imprisonment exceeded one year and one month, the probation officer assigned three criminal history points, pursuant to U.S.S.G. § 4Al.l(a).

The probation officer also assessed one criminal history point each for Kevin’s 1997 conviction for driving with a suspended license and his 1998 conviction for obstruction of a law enforcement officer by providing false information. 1 Kevin was thus assigned a total of 11 criminal history points, resulting in a criminal history category of V. With a total offense level of 31 and a criminal history category of V, Kevin’s Sentencing Guidelines imprisonment range was 168 to 210 months.

Kevin raised several objections to the PSI. As relevant to the instant appeal, Kevin objected to: the two-level enhancement for obstruction of justice; the three criminal history points assessed for his previous conviction for cocaine possession; the criminal history point assessed for his 1997 conviction for driving with a suspended license; and the criminal history point assessed for his 1998 conviction for obstruction of a law enforcement officer. Kevin also asserted that he should receive a downward departure pursuant to U.S.S.G. § 5K2.0 because his cocaine-distribution offense had no victim and the advisory Guidelines range was unduly harsh, as it reflected the sentencing disparity between crack and powder cocaine.

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Bluebook (online)
248 F. App'x 86, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-kevin-klarell-washington-ca11-2007.