United States v. Pate , 326 F. App'x 684 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4449
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ANTHONY TREVINO PATE,
Defendant – Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
Senior District Judge. (1:06-cr-00478-NCT-3)
Submitted: April 13, 2009 Decided: May 4, 2009
Before MICHAEL and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
C. Scott Holmes, BROCK, PAYNE & MEECE, PA, Durham, North
Carolina, for Appellant. Anna Mills Wagoner, United States
Attorney, Randall S. Galyon, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Anthony Trevino Pate was charged with conspiring to
distribute fifty grams or more of a mixture or substance
containing a detectable amount of crack cocaine, in violation of
21 U.S.C. § 846 (2006) (Count One), distribution of .2 grams of
crack cocaine on May 9, 2005 (Count Two), distribution of .3
grams of crack cocaine on October 19, 2005 (Count Thirteen), and
distribution of 7.9 grams of crack cocaine on November 1, 2005
(Count Fourteen), all in violation of 21 U.S.C. § 841(a)(1),
(b)(1) (2006). The jury convicted Pate of all four counts and
found the drug amounts as alleged except for Count One. With
respect to Count One, the jury found Pate guilty of conspiring
to distribute 12.6 grams of crack cocaine. At sentencing, the
district court determined Pate was responsible for 50.4 grams of
crack cocaine and sentenced him to 212 months’ imprisonment.
On appeal, Pate first argues that his conspiracy
conviction must be overturned because he was charged with a
single conspiracy but the Government’s evidence established
multiple conspiracies. A variance occurs where the evidence
presented at trial differs materially from the facts alleged in
the indictment. United States v. Kennedy, 32 F.3d 876, 883 (4th
Cir. 1994). “Whether there is a single conspiracy or multiple
conspiracies, . . . is a question of fact for the jury and we
must affirm its finding of a single conspiracy unless the
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evidence, taken in the light most favorable to the government,
would not allow a reasonable jury to so find.” United States v.
Harris, 39 F.3d 1262, 1267 (4th Cir. 1994) (quoting United
States v. Urbanik, 801 F.2d 692, 695 (4th Cir. 1986)). Also, a
reversal is proper on variance grounds only if the variance
infringed the appellant’s substantial rights and resulted in
actual prejudice. Kennedy, 32 F.3d at 883. To show actual
prejudice from a multiple conspiracy variance, the appellant
must show that there were so many defendants and conspiracies
before the jury as to make it likely the jury would transfer
evidence of the guilt of the members of one conspiracy to a
defendant who was not involved in that conspiracy. Id.We have reviewed the record and determine that the
evidence at trial, viewed in the light most favorable to the
Government, fully supports the jury’s verdict on the conspiracy
count. Moreover, the fact that the jury asked during
deliberations whether Pate could be convicted of conspiring with
persons not named in the indictment and its finding of less than
the fifty grams of crack cocaine alleged in Count One does not
establish a fatal variance. See United States v. Powell,
469 U.S. 57, 64-65, 67 (1984). Additionally, because he stood
trial alone, Pate cannot establish actual prejudice from any
variance between the indictment and the evidence. Kennedy,
32 F.3d at 884 (citing United States v. Anguiano, 873 F.2d 1314,
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1318 (9th Cir. 1989). Accordingly, Pate’s variance claim is
without merit.
Pate also challenges the district court’s
determination of the drug amounts attributable to him for
sentencing. The district court’s determination of the drug
amount for which a defendant is responsible is a factual issue
reviewed for clear error. United States v. Lamarr, 75 F.3d 964,
972 (4th Cir. 1996). Accordingly, this court will reverse only
if “left with the definite and firm conviction that a mistake
has been committed.” United States v. Stevenson, 396 F.3d 538,
542 (4th Cir. 2005) (quoting Anderson v. Bessemer City, 470 U.S.
564, 573 (1985)). At sentencing, the Government need only
establish the amount of drugs involved by a preponderance of the
evidence. United States v. Cook, 76 F.3d 596, 604 (4th Cir.
1996). This court will afford the district court “broad
discretion as to what information to credit in making its
calculations.” Cook, 76 F.3d at 604 (citing United States v.
Falesbork, 5 F.3d 715, 722 (4th Cir. 1993) (internal quotations
omitted)). A district court need only determine “that it [is]
more likely than not that the defendant was responsible for at
least the drug quantity attributable to him.” United States v.
Kiulin, 360 F.3d 456, 461 (4th Cir. 2004) (citing Cook, 76 F.3d
at 604 (emphasis in the original)). Our review of the record
leads us to conclude that Pate fails to demonstrate that the
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district court clearly erred in holding him accountable for 50.4
grams of crack cocaine.
Accordingly, we affirm the judgment of the district
court. We dispense with oral argument as 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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