United States v. Mardena Thomas ( 2000 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4474
MARDENA THOMAS,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4498
ANTHONY GILLIANS,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 99-4619
BARRINGTON ISAACS, a/k/a Orville
Griswold,
Defendant-Appellant.
Appeals from the United States District Court
for the District of South Carolina, at Charleston.
David C. Norton, District Judge.
(CR-98-356)
Submitted: April 20, 2000
Decided: May 10, 2000
Before WILKINS, TRAXLER, and KING, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Dale T. Cobb, BELK, COBB, CHANDLER & GOLDSTEIN,
Charleston, South Carolina; David K. Haller, THE RICHTER FIRM,
Mt. Pleasant, South Carolina; Douglas H. Westbrook, Charleston,
South Carolina, for Appellants. J. Rene Josey, United States Attorney,
Robert H. Bickerton, Assistant United States Attorney, Charleston,
South Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
In these consolidated appeals, Barrington Isaacs, Mardena Thomas,
and Anthony Gillians appeal their convictions and sentences for vari-
ous charges arising from their participation in a drug conspiracy.
Isaacs pled guilty to participation in a conspiracy to possess with
intent to distribute and to distribute cocaine and cocaine base, con-
spiracy to import cocaine, and conspiracy to engage in money laun-
dering. The district court sentenced him to concurrent terms of
imprisonment of 262 months on the drug counts, as well as a concur-
rent term of 240 months on the money laundering count. Thomas pled
guilty to conspiracy to engage in money laundering. The district court
sentenced her to a term of imprisonment of seventy months. Gillians
pled guilty to conspiracy to possess with intent to distribute and to
distribute cocaine and cocaine base. The district court sentenced him
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to a term of imprisonment of 240 months. Finding no reversible error,
we affirm.
The Appellants raise six issues on appeal: (1) whether the district
court erred in imposing a four level upward adjustment on Isaacs'
sentence for a leadership role pursuant to U.S. Sentencing Guidelines
Manual § 3B1.1(a) (1998); (2) whether the district court erred in
denying Isaacs' motion for a downward departure pursuant to USSG
§ 5K2.0; (3) whether the Government breached Thomas' plea agree-
ment by failing to move for a downward departure based on substan-
tial assistance; (4) whether the district court clearly erred in deciding
that Thomas should not receive an adjustment for acceptance of
responsibility; (5) whether the district court improperly found that
Gillians waived his right to object to the amended information filed
by the Government pursuant to 21 U.S.C.A. § 851 (West 1999); and
(6) whether the district court erred in finding that Gillians' 1993 drug
conviction was a "prior conviction for a felony drug offense" and that
his mandatory minimum sentence was properly enhanced pursuant to
21 U.S.C.A. § 841(b)(1)(A) (West 1999).
A four-level adjustment in the offense level is warranted under
§ 3B1.1(a) if the "defendant was an organizer or leader of a criminal
activity that involved five or more participants or was otherwise
extensive." USSG § 3B1.1(a). The defendant must have been the
organizer or leader of at least one or more other participants. See
USSG § 3B1.1, comment. (n.2). The determination that the defendant
played an aggravating role in the offense is essentially a factual ques-
tion reviewed for clear error. See United States v. Sheffer, 896 F.2d
842, 846 (4th Cir. 1990). We find that based on Isaacs' own conces-
sions, the adjustment was not clearly erroneous. The record estab-
lishes that Isaacs was the leader of at least one other member of a
conspiracy that involved five or more participants. Accordingly, the
district court correctly applied USSG § 3B1.1 to increase Isaacs'
offense level by four levels.
We also find that the district court did not err in denying Isaacs'
motion for a downward departure pursuant to USSG§ 5K2.0. Isaacs
claims that he was entitled to the departure because he stipulated
deportability and consented to deportation upon his release from
prison. A district court's decision not to depart from the sentencing
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guidelines is not subject to appellate review unless the refusal to
depart is based on the mistaken belief that the court lacked the author-
ity to depart. See United States v. Bayerle, 898 F.2d 28, 30-31 (4th
Cir. 1990). The record establishes that the court fully considered
Isaacs' proffered grounds for departure but found no aggravating or
mitigating circumstances that were "not adequately taken into consid-
eration by the Sentencing Commission in formulating the guidelines."
USSG § 5K2.0. The court's decision therefore is not subject to appel-
late review.
Thomas contends that the Government breached its plea agreement
with her by failing to move for a downward departure for substantial
assistance pursuant to USSG § 5K1.1. Through an oral motion at sen-
tencing, Thomas sought a downward departure, which the district
court treated as a motion for specific performance. Because the plea
agreement did not obligate the Government to move for a departure,
the district court was permitted to inquire into the reasons for the
Government's decision not to move for a departure only if there was
proof that the Government's decision was based on an unconstitu-
tional motive, such as racial bias. See Wade v. United States, 504 U.S.
181, 185-86 (1992); United States v. Wallace, 22 F.3d 84, 87 (4th Cir.
1994). Because Thomas makes no claim that the Government's
refusal to recommend a downward departure was based upon an
unconstitutional motive, we find that the district court properly denied
Thomas' oral motion for a downward departure.
Thomas also contends that the district court erred in refusing to
award a decrease in her base offense level for acceptance of responsi-
bility under USSG § 3E1.1. This court reviews a district court's deci-
sion to deny an acceptance of responsibility adjustment for clear
error. See United States v. Holt, 79 F.3d 14, 17 (4th Cir. 1996). To
receive a reduction under USSG § 3E1.1 for acceptance of responsi-
bility, a defendant must prove by a preponderance of the evidence that
she has clearly recognized and affirmatively accepted personal
responsibility for her criminal conduct. A guilty plea does not auto-
matically entitle a defendant to the reduction. See United States v.
Harris, 882 F.2d 902, 905 (4th Cir. 1989). Because the presentence
report ("PSR") and Thomas' statements at sentencing do not demon-
strate that she accepted responsibility for her part in the conspiracy,
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we find that the district court properly denied an adjustment for
acceptance of responsibility.
Finally, we find that the district court correctly concluded that Gil-
lians' plea agreement contained an implicit agreement that he would
not object to a sentencing enhancement for his 1993 drug conviction
pursuant to 21 U.S.C.A. § 851 (West 1999). We further agree with the
district court's finding that Gillians' drug conviction was a prior con-
viction for a felony drug offense pursuant to 21 U.S.C.A.
§ 841(b)(1)(A) (West 1999). See United States v. Howard, 115 F.3d
1151, 1158 (4th Cir. 1997); United States v. Hansley, 54 F.3d 709,
717 (11th Cir. 1995).
Accordingly, we affirm the convictions and sentences of Isaacs,
Thomas, and Gillians. We deny the Government's motion to supple-
ment the joint appendix and 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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