United States v. Kevin Washington, Jr.

• Court: Court of Appeals for the Fourth Circuit
• Decided: August 22, 2019
• Docket: 18-4764
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 18-4764

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

KEVIN J. WASHINGTON, JR.,

Defendant - Appellant.

Appeal from the United States District Court for the Northern District of West Virginia, at Wheeling. Frederick P. Stamp, Jr., Senior District Judge. (5:17-cr-00027-FPS-JPM- 1)

Submitted: July 17, 2019 Decided: August 22, 2019

Before GREGORY, Chief Judge, NIEMEYER, Circuit Judge, and SHEDD, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Tracy Weese, Shepherdstown, West Virginia, for Appellant. William J. Powell, United States Attorney, Martinsburg, West Virginia, Robert H. McWilliams, Jr., Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Wheeling, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Kevin J. Washington, Jr., appeals the 63-month sentence imposed following his

guilty plea to distributing an unspecified quantity of oxycodone, in violation of 21 U.S.C.

§ 841(a)(1), (b)(1)(C) (2012). The lone issue presented for our consideration is whether

the district court clearly erred in determining the drug quantity attributable to Washington

for sentencing purposes. We reject this argument and affirm the criminal judgment.

In reviewing any federal sentence, we are charged with first ensuring that the

district court did not commit any “significant procedural error,” such as failing to

properly calculate the applicable Sentencing Guidelines range, failing to consider the 18

U.S.C. § 3553(a) (2012) factors, or failing to adequately explain the sentence. Gall v.

United States, 552 U.S. 38, 51 (2007). In evaluating a challenge to the district court’s

computation of a defendant’s Guidelines range, this court reviews for clear error the

underlying factual determinations made by the district court and reviews de novo its

relevant legal conclusions. See United States v. Alvarado Perez, 609 F.3d 609, 612 (4th

Cir. 2010).

Of course, “the district court’s calculation of the quantity of drugs attributable to a

defendant for sentencing purposes” is a classic factual determination and thus reviewed

only for clear error. United States v. Crawford, 734 F.3d 339, 342 (4th Cir. 2013)

(internal quotation marks omitted). “A finding is clearly erroneous when although there

is evidence to support it, the reviewing court on the entire evidence is left with the

definite and firm conviction that a mistake has been committed.” United States v.

Wooden, 887 F.3d 591, 602 (4th Cir. 2018) (internal quotation marks omitted).

2 The Government must prove the drug quantity attributable to the defendant by a

preponderance of the evidence. United States v. McGee, 736 F.3d 263, 271 (4th Cir.

2013). “Under the Guidelines, the drug quantities that may be attributed to the defendant

include the quantities associated with the defendant’s offense of conviction and any

relevant conduct.” United States v. Flores-Alvarado, 779 F.3d 250, 255 (4th Cir. 2015).

Where, as here, “the drug quantity is not proven by actual seizures or comparable direct

evidence, the government must present evidence from which the sentencing court may

approximate the quantity.” United States v. Bell, 667 F.3d 431, 441 (4th Cir. 2011)

(internal quotation marks omitted). “When determining facts relevant to sentencing, such

as an approximated drug quantity, the Sentencing Guidelines allow courts 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 accuracy.” Crawford, 734 F.3d at 342 (internal quotation marks

omitted).

After conducting an extensive sentencing hearing, the district court made two

factual findings that it used to calculate the drug quantity attributable to Washington:

(1) that Washington sold 30-milligram oxycodone tablets for $20/pill; and (2) that a total

of $84,800 was attributable to Washington’s drug distribution efforts. Dividing this

amount by the price-per-pill, the district court determined that Washington was

accountable for selling 127.2 grams of oxycodone. This, in turn, converts to 850.9

kilograms of marijuana, which corresponds with base offense level 28. See U.S.

3 Sentencing Guidelines Manual § 2D1.1 app. n.8(D) (Drug Equivalency Tables) (2016);

see also USSG § 2D1.1(c)(6).

To determine the price-per-pill, the district court relied on the sentencing

testimony of one of Washington’s coconspirators, who the district court acknowledged

was not entirely credible. Washington assigns error to the court’s reliance on this

testimony to determine this fact, but we conclude that the court was within the bounds of

its considerable discretion in crediting this aspect of the coconspirator’s testimony—

despite acknowledging other areas in which the testimony was less credible. See United

States v. Slade, 631 F.3d 185, 188 (4th Cir. 2011) (“[I]t is within the discretion of the

district court to credit the testimony of these witnesses who discussed [the defendant’s]

involvement in the drug trade.”). Washington next claims that the court clearly erred in

determining the amount of money attributable to his drug distribution efforts but, upon

review, we find there is sufficient record support for this factual finding. See Wooden,

887 F.3d at 602; Anderson v. City of Bessemer City, 470 U.S. 564, 573 (1985)

(explaining that a reviewing court cannot “reverse the finding of the trier of fact simply

because it is convinced that it would have decided the case differently”).

We affirm the criminal judgment. We dispense with 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