United States v. Stallings

97 F. App'x 608
CourtCourt of Appeals for the Sixth Circuit
DecidedMay 6, 2004
DocketNos. 02-4461, 03-3011, 03-3012
StatusPublished

This text of 97 F. App'x 608 (United States v. Stallings) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth 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. Stallings, 97 F. App'x 608 (6th Cir. 2004).

Opinion

MERRITT, Circuit Judge.

Beginning in at least early as 1997 and continuing through mid-2002, defendants were involved in a conspiracy to possess with intent to distribute crack cocaine in Akron, Ohio. Defendants Lamarr Stallings. Darrell Woodall, and Alvin Phillips1 were indicted in a 101-count indictment naming defendants along with 41 others. Defendants each pleaded guilty under a plea agreement and only their sentences are challenged in this appeal. Pursuant to the [610]*610plea agreements, the conspiracy count (Count 1) against each defendant was dismissed, with the result that the defendants herein were not charged with the total amount of cocaine distributed through the conspiracy. Instead, defendants were charged only with the amounts listed in the individual counts against each defendant. Each of the three defendants will be addressed in turn below.

Lamarr Stallings

Defendant Lamarr Stallings pled guilty to three counts of distribution of crack cocaine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). Based on an adjusted offense level 21 and a criminal history category of III. Stallings received a sentence of 48 months with three years supervised release on each count to run concurrently. Stallings raises four issues on appeal: (1) he should have received a role reduction due to his minor involvement in the conspiracy; (2) the district court should not have included certain misdemeanor offenses committed when he was a juvenile because he was not represented by counsel in those proceedings; (3) he is entitled to a downward departure because the criminal history category calculated for him overstates the seriousness of his criminal history and (4) he is entitled to a downward departure based on the totality of the circumstances and the fact that he does not fall within the “heartland” of this type of case.

Stallings first argues that he should have received a four-level role reduction for his minimal activity in connection with the three counts of distribution with which he was charged (Counts 13, 14, 16). Stallings contends that because he performed a limited role in the overall conspiracy, he should receive a reduction pursuant to U.S.S.G. § 3B1.2. The district court did not err in refusing to give Stallings a role reduction because he was the only person involved in the sales he made. Section 3B1.2 “is not applicable unless more than one participant was involved in the offense.” The fact that the amount of cocaine attributed to him in relation to the overall conspiracy is small is of little relevance here, particularly, as the district court noted, because the general conspiracy count was dismissed against Stallings. In other words, application note 3(A) to guideline § 3B1.2 (“A defendant who is accountable [for relevant conduct] ... is not precluded from consideration for an adjustment under the guidelines”) does not aid Stallings here because he was sentenced only for the total grams of cocaine base represented by the three counts to which he pled guilty. (Emphasis added.) There was no enhancement, or any increase in the base offense level — he was not made “accountable” — for relevant conduct. Application note 3(A) does not call for an adjustment for a defendant who is sentenced only for the drugs in substantive counts in which he alone participated and whose sentence is unaffected by his role, if any, in concerted activity.”

As to the calculations of his criminal history category, Stallings contends that he should not have been given two criminal history points for misdemeanor convictions received while he was a juvenile, for which he received only probation and where he may not have been represented by counsel. Stallings also contends that he should not have received one criminal history point for conviction of Attempted Possession of Cocaine under Ohio law because there is no such crime in Ohio. Stallings sums up his argument about his criminal history category by claiming that the district court erred in not granting him a downward departure on the ground that his criminal history overstates the seriousness of his past criminal history.

None of these arguments has merit. Stallings argues that the district court erred in assessing two criminal history [611]*611points for his juvenile misdemeanor convictions for breaking and entering and drug/tampering because he may not have been represented by counsel. Alabama v. Shelton, 535 U.S. 654, 122 S.Ct. 1764, 152 L.Ed.2d 888 (2002). Because this claim is made for the first time on appeal, it is reviewed for plain error. These convictions were clearly reflected in the presentence report, and no objection was made. No further investigation of these convictions was done below; the record is silent as to the circumstances of these convictions; therefore, there is no basis in the record for us to find plain error on appeal.

Stallings’ argument that he should not have been assessed one criminal history point for Attempted Possession of Cocaine because no such law exists in Ohio is also without merit. Attempt to Commit Drug Abuse is a crime under Ohio Rev.Code § 2903.02. Furthermore, Stallings did not specifically raise this issue before the district court, and we do not find plain error.

What Stallings did argue below was that he was entitled to a downward departure based on the argument that his criminal history category overstates the seriousness of his past crimes. On appeal, Stallings reframes this somewhat as an error based on the district court’s failure to depart downward based on the “totality of the circumstances” and the argument that he is not within the “heartland” of the guidelines used to sentence him. U.S.S.G. § 5K2.0. Contrary to Stallings’ claims, there is no indication that the district court did not recognize its ability to depart where the circumstances warrant such action. Therefore, the issue is nonreviewable on appeal. United States v. Ridge, 329 F.3d 535, 544 (6th Cir.2003).

Darrell Woodall

Defendant Darrell Woodall pled guilty to five counts of distribution of crack cocaine and aiding and abetting in the distribution of crack cocaine in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B) and (b)(1)(C) (Counts 75, 80, 84, 91, 98). Based on an adjusted offense level of 30 and a criminal history category of VI, Woodall received a sentence of 205 months with three years supervised release on Count 80 and four years supervised release on Counts 75, 84, 91 and 98, each count to run concurrently. Woodall raises two issues on appeal: (1) that the district court erred in refusing to credit Woodall with any reduction for acceptance of responsibility and (2) that the district court erred in assessing a two-level enhancement for Woodall’s role in the offense.

In drafting the plea agreement with Woodall, the government agreed to recommend a two-level reduction for acceptance of responsibility and agreed that Woodall would request an additional one-level reduction.

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Related

Anders v. California
386 U.S. 738 (Supreme Court, 1967)
Alabama v. Shelton
535 U.S. 654 (Supreme Court, 2002)
United States v. Francis A. Koeberlein
161 F.3d 946 (Sixth Circuit, 1998)

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Bluebook (online)
97 F. App'x 608, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-stallings-ca6-2004.