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United States v. Shountario Walker, 13-4167 (2014)

Court: Court of Appeals for the Fourth Circuit Number: 13-4167 Visitors: 19
Filed: Feb. 21, 2014
Latest Update: Mar. 02, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4167 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. SHOUNTARIO DEVON WALKER, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Fox, Senior District Judge. (5:12-cr-00298-F-1) Submitted: January 30, 2014 Decided: February 21, 2014 Before DAVIS, KEENAN, and WYNN, Circuit Judges. Affirmed by unpublished per curiam opinion. Geoffrey W. Hosfor
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                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 13-4167


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

SHOUNTARIO DEVON WALKER,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (5:12-cr-00298-F-1)


Submitted:   January 30, 2014             Decided:   February 21, 2014


Before DAVIS, KEENAN, and WYNN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Geoffrey W. Hosford, HOSFORD & HOSFORD, P.C., Wilmington, North
Carolina, for Appellant.     Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Yvonne V. Watford-McKinney,
Assistant United States Attorneys, Raleigh, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

             Shountario         Devon    Walker      pled     guilty     without      a    plea

agreement to possession with intent to distribute fifty grams or

more of cocaine (Count One), and distribution of cocaine (Counts

Two through Seven).              Based on a total offense level of thirty-

one and a criminal history category of V, Walker’s Guidelines

range was 168 to 210 months’ imprisonment.                           Walker objected to

the    presentence       report     (“PSR”),        challenging        the    drug    amount

attributed     to    him    as     relevant        conduct,    arguing       that     certain

amounts     came    from    an    unreliable        source.        The   district         court

overruled the objection and sentenced Walker to 180 months on

each count to run concurrently.

             Walker’s sole claim on appeal is that his sentence is

procedurally unreasonable because the district court erred in

calculating        his     Guidelines         range,       namely,     that     the       court

improperly      determined          drug       amounts       for     relevant         conduct

purposes.       Walker’s         claim   is    two-fold:       (1)    the    statement       of

cooperating witness Costa Pender was incredible and unreliable;

and (2) the Government failed to timely produce the identities

of    the   witnesses      who    participated         in   the    offense      conduct      as

stated in the PSR.

             First,      Walker     contends        that    the    evidence     supporting

the determination of his offense level was fatally unbelievable

and    insufficient        to    carry     the     Government’s        burden    of       proof

                                               2
because it consisted solely of the uncorroborated hearsay of an

unreliable cooperating witness.                   “[T]he government must prove

the drug quantity attributable to a particular defendant by a

preponderance of the evidence.”                 United States v. Bell, 
667 F.3d 431
,    441    (4th    Cir.   2011).        We    review    the       district     court’s

calculation of the quantity of drugs attributable to a defendant

for    sentencing      purposes     for    clear    error.           United      States   v.

Crawford, 
734 F.3d 339
, 342 (4th Cir. 2013); see also United

States    v.    Perez,      
609 F.3d 609
,    612   (4th        Cir.      2010)   (when

assessing a challenge to the district court’s application of the

Guidelines, this court reviews factual findings for clear error

and legal conclusions de novo).                   Under this standard, we will

reverse the district court’s finding only if we are “left with

the    definite       and   firm    conviction      that        a    mistake     has   been

committed.”       
Crawford, 734 F.3d at 342
(internal quotation marks

and citation omitted).

               When determining facts relevant to sentencing, such as

drug     quantity,      district      courts       are   allowed          to    “‘consider

relevant information without regard to its admissibility under

the rules of evidence applicable at trial, provided that the

information has sufficient indicia of reliability to support its

probable       accuracy.’”         Crawford,       734     at       342   (quoting     U.S.

Sentencing      Guidelines        Manual    § 6A1.3(a)          (2012)).         In    fact,

hearsay alone can provide sufficiently reliable evidence of drug

                                            3
quantity.     
Crawford, 734 F.3d at 342
; see also United States v.

Wilkinson, 
590 F.3d 259
, 269 (4th Cir. 2010) (“[A] sentencing

court may give weight to any relevant information before it,

including uncorroborated hearsay, provided that the information

has     sufficient      indicia        of       reliability        to     support      its

accuracy.”).         Having     reviewed        the    record,      we    conclude     the

district     court     did     not     clearly        err     in   finding    that     the

Government established drug quantity by a preponderance of the

evidence and that the disputed evidence had sufficient indicia

of reliability.

            Walker       also         challenges            the    district        court’s

consideration of the witnesses’ statements in the PSR as to drug

quantity    on   the   ground        that   the   Government        failed    to   timely

disclose the identity of the cooperating witnesses.                                Because

Walker did not object on this basis below, we review this claim

for plain error.        See United States v. Olano, 
507 U.S. 725
, 732

(1993).     To establish plain error, Walker must show: (1) that an

error was made; (2) that the error was plain; and (3) that the

error     affected     his     substantial        rights.          United     States   v.

Carthorne, 
726 F.3d 503
, 510 (4th Cir. 2013).                            Walker has not

satisfied this standard.

            In support of this contention, Walker argues that the

district     court     erred    in     relying        on     certain     statements     by

cooperating witnesses that were not provided to him until after

                                            4
the first draft of the PSR and approximately one month before

sentencing.       We    conclude       Walker   cannot     show    plain     error    as

defense counsel was able to fully cross examine the Government’s

witnesses     regarding      their        interviews       with      the     relevant

cooperating    witnesses.          Therefore,        Walker       cannot    show     his

substantial   rights      were    affected      by   any   untimely        disclosure.

See also United States v. Williams, 
977 F.2d 866
, 871 (4th Cir.

1992) (“[A] defendant has no right under the guidelines or the

federal   rules    to    receive       information     about      guideline    ranges

prior to trial.”).

            Accordingly, we affirm the judgment.                   We deny Walker’s

motion to file a pro se supplemental brief.                       We dispense with

oral   argument    because       the    facts    and     legal     contentions       are

adequately    presented     in    the    materials     before      this     court    and

argument would not aid the decisional process.

                                                                             AFFIRMED




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