Filed: Feb. 17, 2011
Latest Update: Feb. 22, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-5101 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DELANTE ROPER, a/k/a Puff, a/k/a Kevin, Defendant - Appellant. Appeal from the United States District Court for the Western District of Virginia, at Harrisonburg. Glen E. Conrad, District Judge. (5:08-cr-00039-GEC-2) Submitted: December 29, 2010 Decided: February 17, 2011 Before MOTZ, GREGORY, and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. R. Dar
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-5101 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DELANTE ROPER, a/k/a Puff, a/k/a Kevin, Defendant - Appellant. Appeal from the United States District Court for the Western District of Virginia, at Harrisonburg. Glen E. Conrad, District Judge. (5:08-cr-00039-GEC-2) Submitted: December 29, 2010 Decided: February 17, 2011 Before MOTZ, GREGORY, and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. R. Darr..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-5101
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DELANTE ROPER, a/k/a Puff, a/k/a Kevin,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg. Glen E. Conrad, District
Judge. (5:08-cr-00039-GEC-2)
Submitted: December 29, 2010 Decided: February 17, 2011
Before MOTZ, GREGORY, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
R. Darren Bostic, BOSTIC & BOSTIC, PC, Harrisonburg, Virginia,
for Appellant. Timothy J. Heaphy, United States Attorney, Ryan
L. Souders, Assistant United States Attorney, Harrisonburg,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury convicted Delante Roper of conspiracy to
distribute five grams or more of cocaine base (count one), 18
U.S.C. §§ 841(a)(1), (b)(1)(A), 846 (2006), distribution of
cocaine base (counts four and eight), 18 U.S.C. § 841(a)(1),
(b)(1)(C), and possession with intent to distribute cocaine base
(count ten), 18 U.S.C. § 841(a)(1), (b)(1)(C). He was sentenced
to 360 months’ imprisonment. On appeal, he argues that (1)
there was insufficient evidence to support the jury’s verdict as
to counts one and ten; (2) the district court erred in denying
him a reduction in his offense level for acceptance of
responsibility; and (3) he was improperly classified a career
offender. We affirm.
We review a district court’s denial of a Fed. R. Crim.
P. 29 motion de novo. United States v. Alerre, 430 F.3d 681,
693 (4th Cir. 2005). “A defendant challenging the sufficiency
of the evidence to support his conviction bears a heavy burden.”
United States v. Beidler,
110 F.3d 1064, 1067 (4th Cir. 1997)
(internal quotation marks omitted). A jury’s verdict “must be
sustained if there is substantial evidence, taking the view most
favorable to the Government, to support it.” Glasser v. United
States,
315 U.S. 60, 80 (1942); see United States v. Perkins,
470 F.3d 150, 160 (4th Cir. 2006). Substantial evidence is
“evidence that a reasonable finder of fact could accept as
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adequate and sufficient to support a conclusion of a defendant’s
guilt beyond a reasonable doubt.” Alerre, 430 F.3d at 693
(internal quotation marks omitted). We consider both
circumstantial and direct evidence, drawing all reasonable
inferences from such evidence in the Government’s favor. United
States v. Harvey,
532 F.3d 326, 333 (4th Cir. 2008). In
resolving issues of substantial evidence, we do not reweigh the
evidence or reassess the factfinder’s determination of witness
credibility, see United States v. Brooks,
524 F.3d 549, 563 (4th
Cir. 2008), and “can reverse a conviction on insufficiency
grounds only when the prosecution’s failure is clear.” United
States v. Moye,
454 F.3d 390, 394 (4th Cir. 2006) (en banc)
(internal quotation marks omitted).
To prove a drug conspiracy, the Government is required
to show: “(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.
Kellam, 568 F.3d 125, 139 (4th Cir.) (internal quotation marks
and citation omitted), cert. denied, 130 S. Ct. 657 (2009).
“The existence of a tacit or mutual understanding is sufficient
to establish a conspiratorial agreement, and the proof of an
agreement need not be direct--it may be inferred from
circumstantial evidence.”
Id. (internal quotation marks and
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citation omitted). “After a conspiracy is shown to
exist, . . . the evidence need only establish a slight
connection between the defendant and the conspiracy to support
[the] conviction.” Id. (internal quotation marks omitted).
With respect to count ten, the Government was required
to prove “(1) possession of the controlled substance; (2)
knowledge of the possession; and (3) intent to distribute.” See
United States v. Hall, 551 F.3d 257, 267 n.10 (4th Cir. 2009).
We have reviewed the transcript of the jury trial in light of
Roper’s arguments on appeal and we conclude that sufficient
evidence supports the jury’s verdict as to both counts one and
ten.
A sentence is reviewed for reasonableness under an
abuse of discretion standard. Gall v. United States, 552 U.S.
38, 51 (2007). This review requires consideration of both the
procedural and substantive reasonableness of a sentence. Id.;
see United States v. Lynn,
592 F.3d 572, 575 (4th Cir. 2010).
After determining whether the district court properly calculated
the defendant’s advisory Guidelines range, we must decide
whether the district court considered the 18 U.S.C. § 3553(a)
(2006) factors, analyzed the arguments presented by the parties,
and sufficiently explained the selected sentence.
Lynn, 592
F.3d at 575-76; see also United States v. Carter,
564 F.3d 325,
330 (4th Cir. 2009) (holding that, while the “individualized
4
assessment need not be elaborate or lengthy, . . . it must
provide a rationale tailored to the particular case . . . and
[be] adequate to permit meaningful appellate review”). Properly
preserved claims of procedural error are subject to harmless
error review. Lynn, 592 F.3d at 576.
Roper first contends that the district court erred in
denying him a reduction in his offense level for acceptance of
responsibility under U.S. Sentencing Guidelines Manual § 3E1.1
(2008). Roper argues that he was entitled to the reduction
because he admitted to the probation officer that he distributed
cocaine base and he “freely admitted that he was involved in the
drug distribution trade” even though “in his view he was not
really a member of the conspiracy.”
We review a district court’s decision to deny an
adjustment for acceptance of responsibility for clear error.
United States v. Dugger, 485 F.3d 236, 239 (4th Cir. 2007).
Pursuant to USSG § 3E1.1, a reduction for acceptance of
responsibility is appropriate “[i]f the defendant clearly
demonstrates acceptance of responsibility for his offense”; it
“is not intended to apply to a defendant who puts the government
to its burden of proof at trial by denying the essential factual
elements of guilt, is convicted, and only then admits
guilt . . . .” USSG § 3E1.1, cmt. n.2. However, a conviction
by trial “does not automatically preclude a defendant” from such
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an adjustment, and in “rare” situations, such as where “a
defendant goes to trial to assert and preserve issues that do
not relate to factual guilt,” the adjustment may be appropriate.
Id. Under the facts of this case, we find no clear error in the
district court’s denial of the reduction based on acceptance of
responsibility.
Last, Roper challenges his career offender status. We
review de novo the district court’s classification of Roper as a
career offender and review for clear error its factual findings.
United States v. Farrior, 535 F.3d 210, 223 (4th Cir. 2008).
Pursuant to USSG § 4B1.1(a), a defendant is a career offender
if:
(1) the defendant was at least eighteen years old at
the time the defendant committed the instant offense
of conviction; (2) the instant offense of conviction
is a felony that is either a crime of violence or a
controlled substance offense; and (3) the defendant
has at least two prior felony convictions of either a
crime of violence or a controlled substance offense.
USSG § 4B1.1(a).
In designating Roper a career offender, the probation
officer relied on Roper’s prior convictions for (1) distribution
of cocaine/possession with intent to distribute cocaine in 1992-
93; and (2) possession with intent to distribute cocaine in
2003. Roper does not dispute that the prior convictions are
controlled substance offenses or that they carried sentences
exceeding one year and one month; rather, he argues the 1992-93
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convictions were not imposed “within fifteen years of [his]
commencement of the instant offense,” or “resulted in [him]
being incarcerated during any part of such fifteen-year period,”
as required under USSG § 4A1.2(e)(1). He points to the fact
that the 1992-93 convictions had a sentencing date just eleven
days within the fifteen-year time frame and that the presentence
report does not state the date of conviction, only the date of
arrest (June 20, 1992) and sentence (July 29, 1993). He
therefore argues that the district court had insufficient basis
to conclude that his 1992-93 convictions were within the
requisite time period.
We conclude the 1992-93 controlled substance
convictions fall within the requisite time frame and were
properly counted for purposes of the career offender guideline.
A conviction counts in the computation of criminal history if
the defendant was “incarcerated during any part” of the period
“within fifteen years of the defendant’s commencement of the
instant offense.” USSG § 4A1.2(e)(1). Roper was sentenced to
incarceration not to exceed three years on July 29, 1993, and he
was released from custody on February 11, 1995, after serving
not less than sixteen months. The present offense of conviction
commenced no later than July 18, 2008, approximately thirteen
years and five months after Roper’s release from incarceration
on his 1992-93 convictions. Accordingly, Roper’s 1992-93
7
convictions were properly counted and served as predicate
convictions for his career offender designation.
Accordingly, we affirm Roper’s convictions and
sentence. 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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