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 2023-04

United States v. Shermarquette Whitaker ( 2023 )


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  • USCA4 Appeal: 21-4591      Doc: 29         Filed: 04/19/2023     Pg: 1 of 3
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-4591
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SHERMARQUETTE BERNARD WHITAKER,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Elizabeth City. James C. Dever III, District Judge. (2:20-cr-00033-D-1)
Submitted: March 30, 2023                                         Decided: April 19, 2023
Before THACKER and QUATTLEBAUM, Circuit Judges, and KEENAN, Senior Circuit
Judge.
Affirmed by unpublished per curiam opinion.
ON BRIEF: W. Michael Dowling, THE DOWLING FIRM PLLC, Raleigh, North
Carolina, for Appellant. Michael F. Easley, Jr., United States Attorney, David A. Bragdon,
Assistant United States Attorney, Matthew L. Fesak, Assistant United States Attorney,
Kristine L. Fritz, Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
USCA4 Appeal: 21-4591       Doc: 29         Filed: 04/19/2023      Pg: 2 of 3
PER CURIAM:
Shermarquette Bernard Whitaker pled guilty to conspiracy to distribute and possess
with intent to distribute five kilograms or more of cocaine, in violation of
    21 U.S.C. § 846
    ,
and possession with intent to distribute 500 grams or more of cocaine, in violation of
    21 U.S.C. § 841
    . The district court entered a forfeiture money judgment in the amount
of $525,000 and sentenced Whitaker to 210 months’ imprisonment. On appeal, Whitaker
challenges the court’s forfeiture order and its application of sentencing enhancements.
Finding no error, we affirm.
Whitaker first claims that the district court lacked statutory authority to enter a
forfeiture money judgment in a criminal case. However, in United States v. Blackman,
    746 F.3d 137
    , 145 (4th Cir. 2014), we concluded that forfeiture money judgments in criminal
cases are not only permissible, but are required when, as here, the defendant has spent or
divested himself of the proceeds of his crime. And, contrary to Whitaker’s argument, our
decision in Blackman is not undermined by the Supreme Court’s subsequent decision in
Honeycutt v. United States,
    581 U.S. 443
    , 447, 452 (2017), which also recognized that
    21 U.S.C. § 853
     permits forfeiture of money as substitute property. Accordingly, we conclude
that there was no reversible error in entering the forfeiture order.
Next, Whitaker argues that the district court erred in imposing sentencing
enhancements for possessing a firearm and making a credible threat of violence. We
review the district court’s findings of fact for clear error and its legal conclusions de novo.
United States v. Fluker,
    891 F.3d 541
    , 547 (4th Cir. 2018). We conclude that the court did
not err in applying a two-level enhancement under U.S. Sentencing Guidelines Manual
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USCA4 Appeal: 21-4591      Doc: 29         Filed: 04/19/2023     Pg: 3 of 3
§ 2D1.1(b)(1) (2018), as statements from cooperating witnesses, as well as firearm and
drug distribution paraphernalia recovered from a trailer Whitaker frequented, reflected that
he possessed a firearm in connection with his offenses. See United States v. Bolton,
    858 F.3d 905
    , 912 (4th Cir. 2017) (noting USSG § 2D1.1(b)(1) “should be applied if the
weapon was present [during the offense], unless it is clearly improbable that the weapon
was connected with the offense” (internal quotation marks omitted)).          We similarly
conclude that, based upon the cooperating witnesses’ statements and Whitaker’s criminal
history, the court did not err in applying a two-level enhancement under USSG
§ 2D1.1(b)(2) for making a credible threat of violence. Although Whitaker argues that the
cooperating witnesses were unreliable, the court was entitled to credit their statements.
United States v. Palmer,
    820 F.3d 640
    , 653 (4th Cir. 2016). Furthermore, when credited,
the witnesses’ statements amply support the court’s application of the sentencing
enhancements.
Accordingly, we affirm Whitaker’s criminal judgment. 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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