United States v. Alphonso Harper , 442 F. App'x 857 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4106
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ALPHONSO HARPER, a/k/a AJ,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. John T. Copenhaver,
Jr., District Judge. (2:09-cr-00179-1)
Submitted: August 4, 2011 Decided: August 16, 2011
Before NEIMEYER, SHEDD, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
David O. Schles, LAW OFFICE OF DAVID SCHLES, Charleston, West
Virginia, for Appellant. R. Booth Goodwin II, United States
Attorney, William B. King, II, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Alphonso Harper, pursuant to a written plea agreement,
pleaded guilty to aiding and abetting the distribution of five
or more grams of cocaine base in violation of 21 U.S.C. §
841(a)(1) and 18 U.S.C. § 2. The district court denied Harper a
three-level sentence reduction for acceptance of responsibility
and issued a two-level sentence enhancement for obstruction of
justice. Harper was then sentenced at the bottom of the
Guidelines range to 121 months’ imprisonment. Harper appeals
his sentence, arguing that the district court erred in (1)
attributing eleven ounces of crack cocaine as relevant conduct,
(2) denying Harper a reduction for acceptance of responsibility,
and (3) enhancing the sentence for obstruction of justice. We
affirm.
We review Harper’s sentence for procedural and
substantive reasonableness. Gall v. United States, 552 U.S. 38,
51 (2007). We must “ensure that the district court committed no
significant procedural error, such as failing to calculate (or
improperly calculating) the Guidelines range, . . . or selecting
a sentence based on clearly erroneous facts.” Id. Harper
claims that the district court committed procedural error by
improperly calculating his offense level.
We first address Harper’s claim that the district
court erred in its determination of attributable drug quantity.
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The Government must establish the quantity of drugs attributable
to a defendant by a preponderance of the evidence and may do so
through the introduction of relevant and reliable evidence.
United States v. Jones, 31 F.3d 1304, 1316 (4th Cir. 1994).
“Determinations regarding the quantity of cocaine base to be
considered as relevant conduct for purposes of calculating a
base offense level are factual in nature and subject to the
clearly erroneous standard of review.” United States v.
Williams, 977 F.2d 866, 869 (4th Cir. 1992). Factual findings
based on a district court’s assessment of witness credibility
deserve “the highest degree of appellate deference.” United
States v. Thompson, 554 F.3d 450, 452 (4th Cir. 2009).
Harper contends that Brandi Adkins, his girlfriend and
mother of his child, did not provide credible testimony
regarding the amount of crack cocaine Harper sold. In
particular, Harper notes that the cocaine estimates given in
Adkins’s first statement shortly after being arrested differ
from the estimates she testified to during Harper’s sentencing
hearing. We do not find Harper’s argument persuasive.
Here, the district court recognized the
inconsistencies in Adkins’s statements and accepted her
explanation for the discrepancies, as did the probation officer
who also deemed Adkins a credible witness. A confidential
informant, Judith Ashworth, testified as well, and corroborated
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Adkins’s testimony. To make the drug quantity determination,
the district court used a conservative estimate provided by
Adkins regarding the quantity of crack cocaine distributed by
Harper during a two-week period. The district court also took
care to not double count the drug quantity, and the record
reveals that Harper’s involvement with distributing crack
cocaine was more substantial than that encompassed by the two-
week period attributed as relevant conduct. The district court
thus considered sufficient evidence and assessed witness
credibility in a reasonable manner. Therefore, we conclude that
the district court did not clearly err in calculating the drug
quantity attributable to Harper.
Nor did the district court err in denying Harper a
downward adjustment for acceptance of responsibility. A
district court’s decision concerning an acceptance of
responsibility adjustment is reviewed for clear error. United
States v. Dugger, 485 F.3d 236, 239 (4th Cir. 2007). We give
due deference to the district court’s decision, because “[t]he
sentencing judge is in a unique position to evaluate a
defendant’s acceptance of responsibility.” USSG § 3E1.1 cmt.
n.5.
The Guidelines allow a district court to reduce the
defendant’s offense level if the defendant “clearly demonstrates
acceptance of responsibility for his offense.” Id. § 3E1.1(a).
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Note 1 to § 3E1.1 lists a number of factors that may be
considered in making this determination, including whether the
defendant admitted the offense conduct and voluntarily
terminated criminal conduct. While the commentary explains that
“[e]ntry of a plea of guilty prior to the commencement of trial
combined with truthfully admitting the conduct comprising the
offense of conviction . . . will constitute significant evidence
of acceptance of responsibility,” it also states that “this
evidence may be outweighed by conduct of the defendant that is
inconsistent with such acceptance of responsibility.” Id. §
3E1.1 cmt. n.3. The defendant must prove to the court by a
preponderance of the evidence “that he has clearly recognized
and affirmatively accepted personal responsibility for his
criminal conduct.” United States v. Nale, 101 F.3d 1000, 1005
(4th Cir. 1996). A guilty plea may be evidence of acceptance,
but “it does not, standing alone, entitle a defendant to a
reduction as a matter of right.” United States v. Harris, 882
F.2d 902, 905 (4th Cir. 1989).
Harper contends that his guilty plea and cooperation
with the terms of his plea agreement should earn him the
acceptance of responsibility reduction. He also argues that
there are no credible witnesses to verify the assault
allegations made against him while awaiting sentencing.
However, the district court heard multiple witnesses testify
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about Harper’s involvement in assaulting fellow inmates while
awaiting sentencing. A wheelchair-bound diabetic, Kerney
Thornsbury, and a West Virginia state trooper testified that
Harper served as the ringleader and lookout as two other inmates
assaulted Thornsbury and took his commissary items. The
district judge also heard testimony from three other inmates
detailing incidents in which Harper had assaulted them. As a
result, the district court found that Harper had not terminated
his criminal conduct and was not deserving of a downward
adjustment for acceptance of responsibility. We agree.
Lastly, we review Harper’s contention that the
district court clearly erred by issuing a two-level enhancement
for obstruction of justice. Factual findings providing the
basis for the application of an obstruction of justice sentence
enhancement will not be disturbed unless the district court
committed clear error. United States v. Kiulin, 360 F.3d 456,
460 (4th Cir. 2004). Moreover, such findings based on a
district court’s assessment of witness credibility deserve “the
highest degree of appellate deference.” Thompson, 554 F.3d at
452.
Pursuant to USSG § 3C1.1, a defendant may receive a
two-point enhancement to his base offense level “if the
defendant willfully obstructed or impeded, or attempted to
obstruct or impede, the administration of justice with respect
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to the investigation, prosecution, or sentencing of the instant
offense of conviction.” The Guidelines also provide a non-
exhaustive list of examples of prohibited conduct, including,
“threatening, intimidating, or otherwise unlawfully influencing
a co-defendant, witness, or juror, directly or indirectly, or
attempting to do so.” Id. § 3C1.1 cmt. n.4.
During sentencing, Adkins and Scottie Clay, one of the
assaulted inmates, described how Harper requested that they
write false letters in an attempt to reduce his sentence.
Adkins testified that after her sentencing hearing, Harper
convinced her to write his lawyer accepting full responsibility
for the drugs and absolving Harper. Adkins’s letter was
submitted by Harper’s lawyer at the sentencing hearing, and
Adkins testified that the contents of the letter were false.
Similarly, Clay testified that Harper pressured him into writing
a letter absolving Harper from all responsibility for the
alleged assaults. Significantly, Harper’s requests to Adkins
and Clay came shortly after Harper learned that he would not
receive an acceptance of responsibility reduction due to his
alleged assaults. We conclude that the evidence supports the
district court’s finding that Harper attempted to obstruct and
impede the administration of justice with respect to his
sentencing, and we affirm its decision to issue a two-level
enhancement.
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Accordingly, because the district court’s findings on
relevant conduct, acceptance of responsibility, and obstruction
of justice do not constitute clear error, we affirm the
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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