Filed: Aug. 23, 2012
Latest Update: Mar. 02, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4970 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. RANDOLPH R. BAKER, Defendant – Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Henry E. Hudson, District Judge. (3:10-cr-00328-HEH-1) Submitted: May 17, 2012 Decided: August 23, 2012 Before AGEE, DAVIS, and DIAZ, Circuit Judges. Affirmed by unpublished per curiam opinion. Charles D. Lewis, Richmond, Virginia, f
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4970 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. RANDOLPH R. BAKER, Defendant – Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Henry E. Hudson, District Judge. (3:10-cr-00328-HEH-1) Submitted: May 17, 2012 Decided: August 23, 2012 Before AGEE, DAVIS, and DIAZ, Circuit Judges. Affirmed by unpublished per curiam opinion. Charles D. Lewis, Richmond, Virginia, fo..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4970
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
RANDOLPH R. BAKER,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Judge. (3:10-cr-00328-HEH-1)
Submitted: May 17, 2012 Decided: August 23, 2012
Before AGEE, DAVIS, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Charles D. Lewis, Richmond, Virginia, for Appellant. Neil H.
MacBride, United States Attorney, Alexandria, Virginia, Olivia
L. Norman, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Following a bench trial, the district court convicted
Randolph Baker of conspiracy to distribute and possess with
intent to distribute oxycodone, in violation of 21 U.S.C. §§ 846
and 841(a)(1), (b)(1)(C). The court sentenced Baker to 156
months’ imprisonment. On appeal, Baker argues that the evidence
was insufficient to support his conviction and that the district
court incorrectly calculated his sentencing range. Finding no
merit to Baker’s challenges, we affirm.
I.
A.
Because the district court returned a guilty verdict, we
review the evidence in the light most favorable to the
Government. See United States v. Burgos, 94 F.3d 849, 862-63
(4th Cir. 1996) (en banc).
From early June 2010 to early August 2010, Baker sold
between 200 and 300 oxycodone pills to Natioe Alves on each of
ten separate occasions. Alves routinely traveled from Boston to
south Florida to buy pills from Baker and other sources,
typically for $7 to $8 a pill, then re-sold them in Boston for
up to $30 a pill. Alves recruited couriers to drive the
oxycodone pills and money back and forth between Massachusetts
and Florida. One of Alves’s main couriers, Daniel Lennon,
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testified that he transported between $45,000 and $86,000 of
Alves’s money to Florida on each of seven separate trips and
accompanied Alves during most of the drug transactions with
Baker. Alves typically traveled to Florida separately from
Lennon, then used all of the money to buy oxycodone pills from
Baker and other suppliers. Latoya Williams also testified that
on several occasions she obtained “a lot” of pills from Baker,
which she usually purchased through a third party and then re-
sold to Alves. J.A. 347.
In early August 2010, a law enforcement officer stopped
Lennon in Emporia, Virginia while Lennon was driving a vehicle
rented in Alves’s name. The officer seized 9000 oxycodone pills
from Lennon. After further investigation, Drug Enforcement
Administration agents executed a search warrant at Baker’s home.
Inside of Baker’s house, the agents found a number of oxycodone
pills, empty pill bottles, and two firearms. Inside of Baker’s
car, the agents found more oxycodone pills, pill bottles,
prescriptions, and business cards for a pain clinic. An
oxycodone addict, Brian Vogelpohl, approached Baker’s house
during the search and admitted to the agents that he was there
to buy 100 oxycodone pills from Baker for $900. In exchange for
immunity, the United States compelled Vogelpohl to testify at
Baker’s trial. In the aftermath of the drug scheme, Alves and
Williams both pleaded guilty to charges of conspiracy to
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distribute and possess with intent to distribute oxycodone.
Lennon pleaded guilty to possession with the intent to
distribute oxycodone.
B.
On December 7, 2010, a grand jury returned an indictment
charging Baker with conspiracy to distribute and possess with
intent to distribute oxycodone. Baker waived his right to a
jury trial, and on March 31, 2011 he pleaded guilty to the
charges. On April 14, 2011, Baker filed a pro se motion to
withdraw his guilty plea, which the district court granted. The
court then set the case for a bench trial to commence on May 26,
2011, ultimately finding Baker guilty.
At Baker’s sentencing hearing, the parties agreed that the
total drug weight involved in Baker’s offense was 158 grams of
actual oxycodone, which is equivalent to 1058.6 kilograms of
marijuana under the U.S. Sentencing Guidelines Manual § 2D1.1.
Under the Guidelines, this qualifies as a level 32 offense.
Baker received a two-level adjustment for the two firearms found
inside of his home, for an adjusted offense level of 34,
resulting in a Guidelines range of 151 to 188 months. The
district court sentenced Baker to 156 months’ imprisonment.
Baker timely appealed.
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II.
We first consider Baker’s challenge to the sufficiency of
the evidence. We must sustain the district court’s verdict “if
there is substantial evidence, taking the view most favorable to
the Government, to support it.” Burgos, 94 F.3d at 862
(internal quotations omitted).
Baker argues that the evidence was insufficient to sustain
his conviction for conspiracy to possess with intent to
distribute oxycodone. He claims that the Government failed to
establish the existence of an agreement between the co-
defendants and him, and that the limited number of transactions
demonstrated no more than a mere buyer-seller relationship. We
disagree.
To prove a conspiracy under 21 U.S.C. § 846, the Government
must establish “(1) an agreement between two or more persons to
engage in conduct that violates a federal drug law, (2) the
defendant's knowledge of the conspiracy, and (3) the defendant's
knowing and voluntary participation in the conspiracy.” United
States v. Strickland, 245 F.3d 368, 384-85 (4th Cir. 2001). The
underlying federal drug law at issue, 21 U.S.C. § 841(a)(1),
states that “it shall be unlawful for any person knowingly or
intentionally--(1) to manufacture, distribute, or dispense, or
possess with intent to manufacture, distribute, or dispense, a
controlled substance.”
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It is well-established that a defendant need not have
knowledge of all of the details of the conspiracy. Strickland,
245 F.3d at 385. The existence of a conspiracy and the
defendant’s connection to it must be proved beyond a reasonable
doubt, but “[o]nce a conspiracy has been proved, the evidence
need only establish a slight connection between any given
defendant and the conspiracy to support conviction.”
Id. at
385. The agreement “need only be a ‘tacit or mutual
understanding’ between the defendant and his accomplice.”
United States v. Hackley,
662 F.3d 671, 679 (4th Cir. 2011)
(quoting United States v. Ellis,
121 F.3d 908, 922 (4th Cir.
1997)). And “[c]ircumstantial evidence alone is sufficient to
support a conviction for conspiracy.”
Id.
Although a buyer-seller relationship alone is not always
enough to support a finding that a defendant was a conspirator
under 21 U.S.C. § 846, “evidence of continuing relationships and
repeated transactions” can support a finding of a conspiracy,
“especially when coupled with substantial quantities of drugs.”
United States v. Reid,
523 F.3d 310, 317 (4th Cir. 2008).
“Evidence of a ‘buy-sell transaction . . . coupled with a
substantial quantity of drugs’ ” can also “ ‘support a reasonable
inference that the parties were co-conspirators.’ ”
Id. (quoting
United States v. Mills,
995 F.2d 480, 485 n.1 (4th Cir. 1993)).
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In United States v. Hackley, we found sufficient evidence
for the jury to conclude beyond a reasonable doubt that Hackley
was part of a conspiracy on these facts: (1) Hackley’s statement
to a government informant that he was getting his supply of
crack from his “family” in Maryland; (2) a government
informant’s testimony that Hackley was “still” getting cocaine,
that he had known Hackley since 1992, and that they had
discussed crack cocaine previously; and (3) a “cryptic
conversation” between Hackley and one of his girlfriends in
which Hackley referenced the “drug game.” 662 F.3d at 680.
Here, as in Hackley, the evidence of “continuing
relationships and repeated transactions,” id. (internal
quotations omitted), supports Baker’s conspiracy conviction. In
fact, the evidence upon which Baker’s conviction rests is far
more persuasive than the minimum standard of sufficiency we
established in Hackley. During the summer of 2010, Baker
regularly supplied oxycodone pills--usually hundreds at a time--
to Alves. Baker also sold to Williams on a less frequent basis,
and he sold to Lennon on one occasion. Alves and Baker were in
close contact with each other throughout the summer--Alves’s
phone records showed ninety outgoing calls from Alves’s phone to
Baker’s phone and twenty-two incoming calls from Baker’s phone
to Alves’s phone between July 22, 2010 and August 6, 2010.
Lennon and Alves both testified that Baker knew Alves traveled
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from Boston to Florida to purchase oxycodone pills and returned
to Boston after buying them. As the evidence shows, Baker had
extensive relationships with convicted members of a drug
conspiracy and engaged in numerous drug transactions. The
compelling evidence that proves Baker’s conspiracy conviction
far surpasses the evidence we held adequate to support Hackley’s
conviction.
Attempting to resist this conclusion, Baker claims that
there was no “ ‘substantial quantity of drugs’ ” involved.
Appellant’s Br. 11. The trial record, however, belies this
assertion, revealing that Baker sold to Alves somewhere between
200 and 300 pills on each of ten separate occasions from early
June 2010 to early August 2010. This amount is far in excess of
what an individual could use and proves that Baker did, in fact,
sell a substantial amount of oxycodone. *
Although Baker may not have agreed explicitly to engage in
a conspiracy, he had continuing relationships with convicted
members of a drug conspiracy, engaged in repeated drug
transactions, sold Alves quantities of oxycodone far beyond what
*
Vogelpohl testified that he was addicted to oxycodone and
took approximately three or four 30 mg pills a day, which equals
approximately 120 pills per month. His testimony supports the
conclusion that the amount sold by Baker to Alves–-totaling
roughly 2500 pills over a two-month period--far exceeds the
amount that an individual could use.
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could be used by an individual, and knew that Alves and Lennon
routinely transported money and drugs between Florida and
Massachusetts. Accordingly, we find that the evidence presented
at trial supports Baker’s conviction.
III.
We next turn to Baker’s challenge to the district court’s
determination of the appropriate Guidelines range. The court’s
calculation of drug quantity for sentencing purposes is a
factual finding that we review for clear error. United States
v. Randall, 171 F.3d 195, 210 (4th Cir. 1999). The Government
must prove the drug quantities attributable to the defendant by
a preponderance of the evidence.
Id.
Baker claims that the drug weight accepted by the district
court was not supported by a preponderance of the evidence, and
the court therefore erred in overruling his objections to the
relevant conduct determination in the presentence report
(“PSR”). We disagree.
To demonstrate clear error, Baker must make an affirmative
showing that the facts in the PSR are incorrect. See Id. at
210-11. This he has not done. Baker claims generally that
“[t]here is simply no evidence to support the statements made by
the co-defendants,” Appellant’s Br. 12, but he fails to provide
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any details, explanation, or case law to support his argument.
Baker has thus failed to meet his burden on clear-error review.
Further, the district court’s drug weight findings were
made after careful deliberation, during which the court
considered evidence presented at trial and stipulations made by
the parties. The district court moreover used a conservative
calculation of the drug weight to avoid over counting or double
counting pills. For example, the court excluded the pills that
Alves obtained from Baker when Lennon was not present, the
quantity that Lennon obtained directly from Baker, and two empty
pill bottles seized from Baker’s home dated June 2010. The
district court also counted only 400 of the oxycodone pills sold
to Williams, despite Williams’s unequivocal testimony that on
one occasion she obtained as many as 1000 pills from Baker
through a third party. And the district court did not include
the pills that Baker supplied to Vogelpohl, who testified that
he bought oxycodone pills from Baker for his own personal use “a
few times a week” from approximately May 2010 until November
2010. J.A. 310.
Not only were the court’s calculations precise and
conservative, the court continued the sentencing for a month to
afford the parties ample time to explore the appropriate drug
weights. During the continuance, the parties produced a “Joint
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Statement of Parties Regarding Drug Weight,” on which the
district court relied during Baker’s sentencing hearing.
Accordingly, we find that the district court did not
clearly err in overruling Baker’s objection to the relevant
conduct determination, and that the court correctly calculated
Baker’s sentencing range.
IV.
For the foregoing reasons, we affirm the judgment of the
district court. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED
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