Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-23-2004

USA v. Carter
Precedential or Non-Precedential: Non-Precedential

Docket No. 02-2491




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"USA v. Carter" (2004). 2004 Decisions. Paper 786.
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                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                Nos. 02-2491 and 02-3068


                            UNITED STATES OF AMERICA

                                              v.

                                   ANGELO CARTER,

                                                                       Appellant

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                             (D.C. Crim. No. 00-00024-13)
                     Honorable Ronald L. Buckwalter, District Judge


                       Submitted under Third Circuit LAR 34.1(a)
                                    April 22, 2004

  BEFORE: SCIRICA, Chief Judge, and ROSENN and GREENBERG, Circuit Judges

                                  (Filed: April 23, 2004)


                               OPINION OF THE COURT


GREENBERG, Circuit Judge.

       A grand jury returned a superseding indictment charging Angelo Carter in three

counts with: count one, conspiracy to distribute and to possess with intent to distribute

more than 50 grams of crack cocaine base, more than 100 grams of a mixture or substance
containing a detectable amount of heroin, and cocaine, marijuana, and phencyclidine

within 1,000 feet of a public housing project in violation of 21 U.S.C. § 846; count two,

conspiracy to travel in interstate commerce to commit murder in violation 18 U.S.C. §

1958(a); count three, conspiracy to affect commerce by robbery in violation of 18 U.S.C.

§ 1951(a), (b)(1), and (b)(3). Carter pleaded not guilty but a jury convicted him on all

three counts at the ensuing trial.

       In calculations, which neither party challenges on this appeal, the district court

concluded that Carter’s total offense level was 37 which, when combined with his

criminal history category of IV, yielded a sentencing range of 292 to 365 months. The

court sentenced Carter to a custodial term of 292 months to be followed by a ten-year

term of supervised release.

       Carter appeals, summarizing his argument as follows:

              Appellant challenges the amount of drugs attributed to him during
       the course of the conspiracy. This challenge is two fold. Appellant
       contends that in his diminished role as a ‘gatekeeper’ he should not be
       deemed as culpable as the others. Essentially that there should be a further
       departure for this diminished role pursuant to U.S.S.G. Section 5K2.0.

              Appellant challenges the sufficiency of the evidence on Count two
       and Count three of the indictment. Appellant’s presence during the
       planning of the robbery/murder plot and wiping of bullets was insufficient
       to establish his participation as a co-conspirator.

Appellant’s br. at 10. We note, however, that notwithstanding Carter’s request for “a

further departure” from the guideline range, the court never departed in the first place,

though it did make calculations in establishing that range that were in part favorable to

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Carter.

          Our standards of review on this appeal are well settled. On the sufficiency of the

evidence argument we view the evidence in the light most favorable to the government as

the verdict winner and will sustain the conviction if there was substantial evidence to

support it so that the jury could have found him guilty beyond a reasonable doubt. See

United States v. Pungitore, 

, 1129 (3d Cir. 1990). With respect to the

departure argument because, as Carter acknowledges, he did not raise the contention in

the district court we review the claim on a plain error basis. See United States v. Couch,

, 252-53 (3d Cir. 2002).

          We have reviewed this matter and have concluded that there is no merit to either of

Carter’s contentions. Indeed the evidence shows that Carter was at the heart of the

conspiracy and thus United States v. Pressler, 

, 153 (3d Cir. 2001), which he

correctly cites for the proposition that tangential connections among various persons are

not sufficient to establish the existence of a conspiracy, appellant’s br. at 21, is not

helpful to him. Finally, the court did not commit a plain error or any error at all in not

departing downward. Moreover, as the government suggests, see appellee’s br. at 34,

“there is no basis for meaningful appellate review of a district court’s failure to grant an

unrequested departure,” at least to the extent that the appellant’s argument is based on

factual contentions as determinations of fact can be reviewed only for clear error. See

United States v. Carr, 

, 1207 (3d Cir. 1994).



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       The judgment of conviction and sentence entered May 28, 2002, and the order

denying Carter’s motion for a judgment of acquittal and a new trial entered July 29, 2002,

will be affirmed.




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