Filed: Oct. 12, 2016
Latest Update: Mar. 03, 2020
Summary: ON REHEARING UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-4460 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. ANTHONY TORELL TATUM, a/k/a Anthony Tatum, a/k/a Brandon Ross, a/k/a Short Dog, Defendant - Appellant. Appeal from the United States District Court for the District of Maryland, at Greenbelt. Deborah K. Chasanow, Senior District Judge. (8:13-cr-00492-DKC-1) Submitted: September 29, 2016 Decided: October 12, 2016 Before DUNCAN and FLOYD, Circuit Judges, and
Summary: ON REHEARING UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-4460 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. ANTHONY TORELL TATUM, a/k/a Anthony Tatum, a/k/a Brandon Ross, a/k/a Short Dog, Defendant - Appellant. Appeal from the United States District Court for the District of Maryland, at Greenbelt. Deborah K. Chasanow, Senior District Judge. (8:13-cr-00492-DKC-1) Submitted: September 29, 2016 Decided: October 12, 2016 Before DUNCAN and FLOYD, Circuit Judges, and ..
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ON REHEARING
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4460
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ANTHONY TORELL TATUM, a/k/a Anthony Tatum, a/k/a Brandon
Ross, a/k/a Short Dog,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Deborah K. Chasanow, Senior District
Judge. (8:13-cr-00492-DKC-1)
Submitted: September 29, 2016 Decided: October 12, 2016
Before DUNCAN and FLOYD, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Richard A. Finci, Jennifer L. Mayer, HOULON, BERMAN, FINCI,
LEVENSTEIN & SKOK, LLC, Greenbelt, Maryland, for Appellant.
Rod J. Rosenstein, United States Attorney, Thomas P. Windom,
Deborah A. Johnston, Assistant United States Attorneys,
Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Anthony Torell Tatum appeals his 324-month sentence entered
pursuant to his guilty plea to drug and money laundering
conspiracies and a firearm charge. On appeal, Tatum contended
that the district court erred in calculating the drug quantity
attributable to him as at least 150 kilograms of cocaine. We
affirmed Tatum’s sentence. Tatum has filed a petition for panel
and en banc rehearing, and after consideration of his arguments
on rehearing, we conclude that our prior opinion misstated a
mathematical calculation. Accordingly, we grant Appellant’s
petition for panel rehearing, 1 and having determined that the
misstatement in the original opinion had no bearing on our
resolution of the ultimate issue, we affirm.
Under the Sentencing Guidelines in effect at the time of
Tatum’s sentencing, a defendant convicted of conspiring to
distribute controlled substances is accountable for all
quantities of contraband with which he was directly involved
and, in the case of a jointly undertaken criminal activity, all
reasonably foreseeable quantities of contraband that were in
furtherance of the joint criminal conduct. U.S. Sentencing
Guidelines Manual § 1B1.3 cmt. n.2 (2014). The Government must
1 We denied the petition for rehearing en banc by separate
order.
2
prove the drug quantity attributable to the defendant by a
preponderance of the evidence. United States v. Carter, 300
F.3d 415, 425 (4th Cir. 2002). The district court may rely on
information in the presentence report unless the defendant
affirmatively shows that the information is inaccurate or
unreliable.
Id. A district court’s findings on drug quantity
are generally factual in nature, and therefore we review for
clear error.
Id. In addition, we may affirm a Guidelines
determination for any reason appearing in the record. United
States v. Garnett,
243 F.3d 824, 830 (4th Cir. 2001) (holding
that appellate courts may “affirm [the] sentence on the basis of
‘any conduct [in the record] that independently and properly
should result in an increase in the offense level’”) (citation
omitted).
Tatum avers that his drug quantity should be limited to the
amount to which he pled guilty. He raises numerous arguments
attacking the reliability and relevance of the Government’s
evidence at sentencing. In the district court, Tatum provided
no evidence or argument as to the actual scope of his
participation in the drug conspiracy to which he pled guilty;
instead, he rested on the Government’s alleged lack of proof and
the district court’s alleged failure to properly consider the
evidence.
3
We conclude that the evidence clearly shows that Tatum was
responsible for at least 150 kilograms of cocaine. Further, the
evidence is so overwhelming that most of Tatum’s arguments fail
to cut to the heart of the matter and just operate to obfuscate
the issue. Specifically, Tatum admitted in the statement of
facts attached to his plea agreement that over $90,000 of cash
deposits in the bank accounts of his businesses were “virtually
all” drug proceeds. 2 In addition, Tatum admitted that, “[i]n
addition,” he used drug proceeds of $17,000 (plus the cost of a
2013 Volvo) to purchase cars. 3 He also admitted to buying
“expensive jewelry,” including men’s watches, with drug
proceeds.
The evidence presented by the Government at sentencing
showed that, from just one store, Tatum’s watch purchases
totaled $260,000. Other seized jewelry and designer clothes
were appraised at over $360,000. In addition, the case agent
averred that Tatum’s cash deposits from 2009 until 2011 were
2
In his petition for rehearing, Tatum contends that “money
order” deposits and “payment” deposits are not part of his
admission that “virtually all” of the “cash deposits” were drug
proceeds. We need not rule on this issue and, instead, have
omitted any funds in Tatum’s admission that were not clearly
stated to be “cash deposits.”
3
Tatum also admitted to purchasing a $60,000 Land Rover in
2011, although the statement of facts does not specifically
identify those funds as drug proceeds.
4
$650,000, the “vast majority” of which was drug proceeds. 4 Thus,
even recognizing some double counting and excluding the amounts
contested in Tatum’s rehearing petition, Tatum’s admissions,
combined with record evidence, easily show that Tatum’s
purchases with and deposits of drug proceeds were at least
$750,000.
Tatum contends that his businesses were legitimate and
ongoing, even though “at least a part” of the cash deposits were
drug proceeds. Thus, he claims that many of his purchases and
deposits were made with legitimate funds. In support, Tatum
states that one of his businesses reported $200,000 in income on
its 2012 tax returns and that an investigator submitted evidence
that the same business was a legitimate business. However, this
evidence only concerns one of Tatum’s businesses and does not
call into question the nature of his other businesses.
Moreover, there is no evidence in the record that the $200,000
income reported was actually traceable to legitimate income, and
the investigator could not locate records sufficient to provide
an estimate as to the company’s income. In addition, the case
agent averred that $650,000 in cash deposits across 22 of
Tatum’s bank accounts were not related to the operation of
4
While these dates precede the dates in the indictment, we
find no error in including these drug proceeds as relevant
conduct.
5
legitimate businesses and that the “vast majority” of the
“business” expenses were personal expenditures. Thus, even if
some portion of the funds in Tatum’s bank accounts were
legitimate, his admissions and the other evidence of record show
clearly at least $750,000 of drug proceeds attributable to
Tatum.
According to the affidavit of the case agent, distribution
of a kilogram of cocaine nets between $1000 and $5000. 5 Thus,
even using the most conservative calculations, the drug proceeds
described above and supported by Tatum’s admissions, as well as
the record evidence, easily represent more than 150 kilograms of
cocaine. Notably, this extremely conservative calculation does
not even consider the wealth of other evidence of drug quantity,
including the cocaine seized during the investigation, any other
“reasonably foreseeable” actions by any members of the
conspiracy that did not directly profit Tatum, and the fact that
the evidence could support a finding that $750,000 converted to
750 kilograms of cocaine ($1000 from each kilogram). As such,
5
Tatum also contends that the Government failed to have an
expert testify as to the proper conversion of cash into cocaine
amounts. To the contrary, however, the Government presented the
affidavit of the case agent, which provided a range of
conversion rates, the most conservative of which still shows
that Tatum was responsible for over 150 kilograms of cocaine.
Tatum does not challenge the agent’s testimony of pricing and
profits or provide any evidence of his own estimates.
6
we find that the district court’s conclusions regarding drug
quantity were not clear error and were well-supported by the
record.
Tatum’s other arguments are nearly wholly irrelevant given
these findings. Tatum contends that the district court failed
to make particularized findings regarding the scope of his
conspiracy and the quantity of cocaine involved. The court also
allegedly failed to make a finding regarding how much of the
coconspirators’ conduct was reasonably foreseeable to Tatum.
Tatum also challenges the case agent’s statements regarding
information from informants. Tatum alleges that the statements
are insufficiently corroborated and that he was not able to
challenge the evidence given that the informants were not
identified. Tatum also asserts that certain cocaine amounts and
cash (not his bank accounts) were never tied to him and that the
district court’s conclusions were entirely speculative. As
discussed above, however, even removing much of this evidence,
the 150-kilogram threshold is easily obtained. As such, any
district court error in these regards would not render the drug
amount clearly erroneous, given the overwhelming evidence
against Tatum. Accordingly, we will not address each issue
separately.
Tatum also has filed several pro se supplemental briefs.
We deny his motions to file these briefs. See United States v.
7
Penniegraft, 641 F.3d 566, 569 n.1 (4th Cir. 2011) (denying
motion to file pro se supplemental brief where appellant had
counsel and appeal not filed pursuant to Anders v. California,
386 U.S. 738 (1967)); see also Myers v. Johnson,
76 F.3d 1330,
1335 (5th Cir. 1996) (“By accepting the assistance of counsel
the criminal appellant waives his right to present pro se briefs
on direct appeal.”). We affirm Tatum’s sentence. 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
8
