Filed: Jun. 06, 2013
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-5161 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. HERBERT DEVAUGHN, a/k/a WOP, Defendant – Appellant. Appeal from the United States District Court for the Northern District of West Virginia, at Clarksburg. Irene M. Keeley, District Judge. (1:10-cr-00078-IMK-1) Argued: May 15, 2013 Decided: June 6, 2013 Before WILKINSON, MOTZ, and SHEDD, Circuit Judges. Affirmed by unpublished opinion. Judge Shedd wrote the opinion, in
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-5161 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. HERBERT DEVAUGHN, a/k/a WOP, Defendant – Appellant. Appeal from the United States District Court for the Northern District of West Virginia, at Clarksburg. Irene M. Keeley, District Judge. (1:10-cr-00078-IMK-1) Argued: May 15, 2013 Decided: June 6, 2013 Before WILKINSON, MOTZ, and SHEDD, Circuit Judges. Affirmed by unpublished opinion. Judge Shedd wrote the opinion, in ..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-5161
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
HERBERT DEVAUGHN, a/k/a WOP,
Defendant – Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg. Irene M. Keeley,
District Judge. (1:10-cr-00078-IMK-1)
Argued: May 15, 2013 Decided: June 6, 2013
Before WILKINSON, MOTZ, and SHEDD, Circuit Judges.
Affirmed by unpublished opinion. Judge Shedd wrote the opinion,
in which Judge Wilkinson and Judge Motz joined.
ARGUED: Scott Charlton Brown, SCOTT C. BROWN LAW OFFICE,
Wheeling, West Virginia, for Appellant. Zelda Elizabeth Wesley,
OFFICE OF THE UNITED STATES ATTORNEY, Clarksburg, West Virginia,
for Appellee. ON BRIEF: William J. Ihlenfeld, II, United
States Attorney, Wheeling, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
SHEDD, Circuit Judge:
Herbert DeVaughn was convicted of 11 counts related to his
role in a conspiracy to distribute heroin and his distribution
of cocaine base, and he was sentenced to 360 months
imprisonment. He now appeals both his convictions and his
sentence. For the following reasons, we affirm.
I.
Because the government prevailed at trial, we review the
evidence in the light most favorable to the government. United
States v. Jefferson, 674 F.3d 332, 341 n.14 (4th Cir. 2012).
From 2007 through 2010, DeVaughn led a conspiracy to distribute
heroin. During this time period, DeVaughn personally
distributed heroin and cocaine base, and he also used an
individual under 18 years of age to assist with his crimes.
DeVaughn was indicted and convicted on 11 counts for his
involvement in this drug distribution scheme. The district
court then sentenced him to 360 months imprisonment. The length
of the sentence reflected the district court’s determinations
that DeVaughn had distributed or conspired to distribute between
one and three kilograms of heroin, had been a leader of the
criminal activity, and had used an individual under 18 years of
age to assist with his crimes.
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II.
DeVaughn challenges his convictions by asserting that the
district court erred when it denied his motion to strike two
potential jurors. DeVaughn moved to strike the potential jurors
because they worked in law enforcement, and, therefore, he
believed they could not be impartial. The district court denied
the motion, and DeVaughn then used peremptory challenges to
strike the two potential jurors. We ordinarily review a
district court’s denial of a motion to strike potential jurors
under an abuse-of-discretion standard. Poynter v. Ratcliff, 874
F.2d 219, 222 (4th Cir. 1989). Here, however, we need not
determine whether the district court abused its discretion
because the Supreme Court has held that a district court’s
refusal to strike jurors for cause is not reversible error if
the defendant cures it by exercising peremptory challenges,
which DeVaughn did here. United States v. Martinez-Salazar,
528
U.S. 304, 307 (2000). Thus, even if the district court erred by
denying the motion, the error is not reversible.
Id.
Accordingly, we affirm DeVaughn’s convictions.
III.
We turn next to DeVaughn’s challenge to his sentence. In
reviewing DeVaughn’s sentence, we apply a “‘deferential abuse-
of-discretion standard,’” reviewing factual findings for clear
error, and legal conclusions de novo. United States v. Davis,
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679 F.3d 177, 182 (4th Cir. 2012) (quoting Gall v. United
States,
552 U.S. 38, 40 (2007)). Because we find no legal error
or clearly erroneous factual determination, we affirm DeVaughn’s
sentence.
A.
DeVaughn first contends that the district court
miscalculated the quantity of heroin he distributed. The
district court determined that DeVaughn distributed between one
and three kilograms of heroin, which set the base offense level
at 32. U.S.S.G. § 2D1.1(c)(4). The district court based this
finding on the testimony of witness Amanda Borror. DeVaughn
contends that Borror’s testimony was not credible because (1)
approximately five years passed between the time she began
purchasing heroin from DeVaughn and the time she testified and
(2) she was a habitual heroin user, which must have impaired her
memory. However, no authority compels district courts to
discredit a witness’s testimony because of drug use or the
passage of time, and, in general, we give “great deference” to
the credibility determinations district courts make at
sentencing. United States v. Layton, 564 F.3d 330, 334 (4th
Cir. 2009) (internal quotation marks omitted). Thus, we do not
believe that the district court’s decision to rely upon Borror’s
testimony rendered its factual finding as to the drug quantity
clearly erroneous.
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B.
DeVaughn next contends that the district court erred by
enhancing his offense level by four points because of his role
as the “organizer or leader of a criminal activity that involved
five or more participants.” U.S.S.G. § 3B1.1(a). At
sentencing, the district court recited the factors the
Sentencing Guidelines instruct courts to consider in applying
this enhancement and determined that DeVaughn was “clearly the
organizer and the . . . leader in this criminal activity.” J.A.
564. The district court noted in particular that DeVaughn
recruited accomplices and planned and organized drug sales, both
of which are relevant factors under Application Note 4 to
U.S.S.G. § 3B1.1(a).
On appeal, DeVaughn acknowledges that the evidence
supported the district court’s factual determinations that he
recruited accomplices and planned and organized the drug sales,
and he does not contest the district court’s conclusion that the
criminal activity involved five or more participants. Instead,
DeVaughn points out that several factors mentioned in
Application Note 4 do not apply to this case and that he did not
engage in all types of activity one may expect from the leader
of a drug conspiracy, such as renting houses to use for drug
distribution, supplying cell phones to his subordinates, or
assisting subordinates with legal issues. However, U.S.S.G. §
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3B1.1(a) does not indicate that all factors from Application
Note 4 must be present or that a defendant must engage in all
types of activity associated with being the leader or organizer
of criminal activity for the enhancement to apply. We find no
basis for adopting such a rule, and we therefore conclude that
the district court did not err by applying the enhancement.
C.
DeVaughn next contends that the district court erred by
enhancing his offense level by two points under U.S.S.G. § 3B1.4
for using a minor to assist in his crimes. DeVaughn notes that
he was convicted under 21 U.S.C. § 861(a)(1) for using a minor
to assist with his crimes, and he contends that it was improper
to enhance his offense level under U.S.S.G. § 3B1.4 for the same
conduct.
Because DeVaughn did not object to the U.S.S.G. § 3B1.4
enhancement at sentencing, we review the district court’s
application of the enhancement for plain error. See United
States v. Wallace, 515 F.3d 327, 331–32 (4th Cir. 2008). To
obtain relief under plain-error review, DeVaughn must establish
that “the district court erred, that the error was plain, and
that it affected his substantial rights.” United States v.
Robinson,
627 F.3d 941, 954 (4th Cir. 2010) (internal quotation
marks and alterations omitted). DeVaughn acknowledged at oral
argument that the theory he advances here—that one may not be
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convicted under 21 U.S.C. § 861(a)(1) and also have his offense
level enhanced under U.S.S.G. §3B1.4—is a novel one. Thus, even
if we were to agree with DeVaughn and conclude that the district
court erred by allowing the enhancement, we would not conclude
that the error was plain. U.S. v. Trejo, 610 F.3d 308, 319 (5th
Cir. 2010) (“novel” claims and claims that are “not entirely
clear under the existing case authority” may not prevail under
plain-error review) (internal quotation marks omitted). Thus,
we find no reversible error.
IV.
For the foregoing reasons, we affirm DeVaughn’s conviction
and his sentence.
AFFIRMED
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