United States v. Shermarquette Whitaker

• Court: Court of Appeals for the Fourth Circuit
• Decided: April 19, 2023
• Docket: 21-4591
• Status: Unpublished

Opinion

USCA4 Appeal: 21-4591 Doc: 29 Filed: 04/19/2023 Pg: 1 of 3

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 21-4591

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

SHERMARQUETTE BERNARD WHITAKER,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Elizabeth City. James C. Dever III, District Judge. (2:20-cr-00033-D-1)

Submitted: March 30, 2023 Decided: April 19, 2023

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

Affirmed by unpublished per curiam opinion.

ON BRIEF: W. Michael Dowling, THE DOWLING FIRM PLLC, Raleigh, North Carolina, for Appellant. Michael F. Easley, Jr., United States Attorney, David A. Bragdon, Assistant United States Attorney, Matthew L. Fesak, Assistant United States Attorney, Kristine L. Fritz, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 21-4591 Doc: 29 Filed: 04/19/2023 Pg: 2 of 3

PER CURIAM:

Shermarquette Bernard Whitaker pled guilty to conspiracy to distribute and possess

with intent to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. § 846,

and possession with intent to distribute 500 grams or more of cocaine, in violation of 21

U.S.C. § 841. The district court entered a forfeiture money judgment in the amount

of $525,000 and sentenced Whitaker to 210 months’ imprisonment. On appeal, Whitaker

challenges the court’s forfeiture order and its application of sentencing enhancements.

Finding no error, we affirm.

Whitaker first claims that the district court lacked statutory authority to enter a

forfeiture money judgment in a criminal case. However, in United States v. Blackman, 746

F.3d 137, 145 (4th Cir. 2014), we concluded that forfeiture money judgments in criminal

cases are not only permissible, but are required when, as here, the defendant has spent or

divested himself of the proceeds of his crime. And, contrary to Whitaker’s argument, our

decision in Blackman is not undermined by the Supreme Court’s subsequent decision in

Honeycutt v. United States, 581 U.S. 443, 447, 452 (2017), which also recognized that 21

U.S.C. § 853 permits forfeiture of money as substitute property. Accordingly, we conclude

that there was no reversible error in entering the forfeiture order.

Next, Whitaker argues that the district court erred in imposing sentencing

enhancements for possessing a firearm and making a credible threat of violence. We

review the district court’s findings of fact for clear error and its legal conclusions de novo.

United States v. Fluker, 891 F.3d 541, 547 (4th Cir. 2018). We conclude that the court did

not err in applying a two-level enhancement under U.S. Sentencing Guidelines Manual

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§ 2D1.1(b)(1) (2018), as statements from cooperating witnesses, as well as firearm and

drug distribution paraphernalia recovered from a trailer Whitaker frequented, reflected that

he possessed a firearm in connection with his offenses. See United States v. Bolton, 858

F.3d 905, 912 (4th Cir. 2017) (noting USSG § 2D1.1(b)(1) “should be applied if the

weapon was present [during the offense], unless it is clearly improbable that the weapon

was connected with the offense” (internal quotation marks omitted)). We similarly

conclude that, based upon the cooperating witnesses’ statements and Whitaker’s criminal

history, the court did not err in applying a two-level enhancement under USSG

§ 2D1.1(b)(2) for making a credible threat of violence. Although Whitaker argues that the

cooperating witnesses were unreliable, the court was entitled to credit their statements.

United States v. Palmer, 820 F.3d 640, 653 (4th Cir. 2016). Furthermore, when credited,

the witnesses’ statements amply support the court’s application of the sentencing

enhancements.

Accordingly, we affirm Whitaker’s 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