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No. 10-4503
No. 10-4504
Appeals from the United States District Court for the Northern
District of West Virginia, at Wheeling.
Frederick P. Stamp,
Jr., Senior District Judge.
(5:09-cr-00027-FPS-JES-1; 5:09-cr00007-FPS-JES-1)
Argued:
Decided:
sentencing
conspiracy
to
of
appellant
possess
with
Lonnie
intent
Anthony
to
Smith
distribute
for:
(1)
heroin,
(2)
In
that
the
failure
of
the
Government
to
Smith also
recommend
Smiths
reasons
plea
that
agreement
follow,
we
constitutes
find
that
plain
Smiths
error.
For
the
arguments
have
no
merit.
I.
On February 3, 2009, a grand jury issued an indictment in
the Northern District of West Virginia charging Smith with the
violation of a number of federal statutes, and on April 7, 2009,
a
superseding
offenses.
indictment
was
returned
charging
the
instant
At
Smiths
bench
trial,
number
of
co-conspirators
rented
for
him
by
his
distributees
in
the
Pittsburgh,
day,
knowing
that
the
heroin
would
be
resold
in
the
court
concurrently.
Smith
counts:
ordered
Smith
to
serve
all
The
sentences
appeals
the
sufficiency
of
the
evidence
of
two
of
the
fact-intensive
nature
of
this
II.
Smith challenges the sufficiency of the evidence for his
conspiracy and Travel Act convictions.
verdict
evidence
where
reasonable
there
finder
is
of
substantial
fact
could
accept
as
such
that
adequate
a
and
(4th Cir. 1996) (en banc), cert. denied, 519 U.S. 1151 (1997).
In doing so, this Court must look at the evidence as a complete
picture, viewed in context and in the light most favorable to
the Government.
Id.
and
voluntarily
became
part
of
the
conspiracy.
States
(internal
v.
Nunez,
citations
and
432
F.3d
573,
quotation
578
marks
(4th
Cir.
omitted).
2005)
Once
connection
between
the
defendant
and
the
conspiracy.
single conspiracy.
(4th Cir. 2009).
court
gave
testifying
under
nonetheless
concluded
credible.
the
plea
testimony
agreements
that
the
of
those
greater
The
co-conspirators
scrutiny
co-conspirators
testimony
and
was
had
distribution
Virginia;
of
they
financial
heroin
shared
in
the
interest
the
goal
6
Northern
of
the
District
sustaining
the
continued
of
West
overall
That drug
See Smith,
of
the
members
of
the
conspiracy
knew
of
the
transactions
rented
at
hotel
rooms
for
Smith
by
the
co-
Cf.
Jeffers,
showed
that
conspiracy.
the
evidence
570
the
F.3d
at
multiple
568
drug
transactions,
which
comprised
single
conspiracy.)
incriminating
testimony
of
the
other
witnesses
and
co-
conspirators.
daily
including
basis,
some
of
the
co-conspirators.
identities
if
the
police
investigated.
Salters
also
Banks involved,
charged
in
single
conspiracy
in
which
not
all
The
Court
affirmed
the
convictions,
rejecting
the
Id. at
transactions
conspirators,
and
between
various
nothing
either
8
ones
of
directly
the
or
alleged
co-
inferentially
Id. at 1053.
of
fact
to
conclude
that
Smith
agreed
with
his
co-
paid
Smith.
Grimes
also
testified
that
she
saw
Smith
another
West
Virginia
dealer,
testified
that
Smith knew Satathite was redistributing heroin and that one time
Smith
remarked
pretty quick.
that
Satathite
must
be
moving
[the
heroin]
of
the
phone
transactions
numbers
and
the
used
to
license
call
plates
Smith
of
to
arrange
vehicles
used
drug
by
co-
heroin
to
Smith
once
McLaughlin, a co-conspirator.
resale.
offered
to
front
See Nunez, 432 F.3d at 578 (citing the fact that drugs
co-conspirators
testified
to
the
same
few
meeting
locations for deals with Smith, and many rented hotel rooms and
cars in exchange for heroin.
phones
showed
frequent
conspirators.
phone
calls
to
number
of
the
co-
heroin
distributed
demonstrate
the
similar
by
Smith.
methods
and
All
means
of
the
used
foregoing
by
the
co-
United
Section
section
102(6)
of
the
Controlled
Substance
Act)
2s
. . .
in
18 U.S.C.
prohibition
against
causing
or
aiding
and
illegal
inducement
of
interstate
travel
occurred
on
in
Pennsylvania.
The
call
was
recorded.
Since
2003,
Cottrill had bought heroin from Smith three or four times per
week.
area
of
Pittsburgh,
Pennsylvania;
Cottrill
would
call
Smith once he arrived in the area, and Smith would tell him the
meeting location -- in this case, the Robinson Mall.
On this
occasion,
evidence
reasonable
violated
for
reasonable
doubt
the
that
trier
Travel
Smith,
Act.
Yet there is
of
on
fact
this
The
to
find
particular
district
court
from
West
Virginia,
(3)
the
timing
of
the
phone
calls
precedent
bolsters
this
conclusion.
Smith
argues
In
The
Supreme
Court
agreed
that
intent
to
. . .
Id. at 811.
12
Rewis,
Baker, 611 F.2d 961, 963 (4th Cir. 1979), one such case cited,
United States v. Zizzo, 338 F.2d 577, 580 (7th Cir. 1964), held
the
proprietor
of
gambling
operation
liable
despite
his
contention that he did not travel interstate and did not even
know of the interstate travel of his employees.
infer
that
the
proprietor
knew
that
some
of
his
This
affirm
the
Travel
Act
conviction
because
of
the
13
III.
Appellant next argues that he should be allowed to withdraw
his guilty plea because of the Governments failure to move for
a sentence at the bottom of the Guidelines range for his escape
conviction.
The plain error standard governs here because Smith did not
raise this claim below.
party must show that an error (1) was made, (2) is plain . . . ,
and (3) affects substantial rights.
F.3d 572, 577 (4th Cir. 2010).
affected
the
outcome
of
the
district
court
proceedings,
Fourth
and finally, if the above three prongs are satisfied, the court
of appeals has the discretion to remedy the error -- discretion
which
ought
affect[s]
to
the
be
exercised
fairness,
judicial proceedings.
only
integrity
if
or
the
error
public
seriously
reputation
of
Guidelines
range
for
that
14
offense.
Surely,
Smith
has
established
that
the
error
was
made
and
that
it
was
plain.
U.S.S.G.
3D1.2(c),
which
combines
conduct
for
multiple
The court
charge,
he
lower
sentence
would
still
be
would
serving
the
not
have
helped
concurrent
him
262-month
It therefore cannot be
rights,
we
affirm
the
sentence
of
the
district
court.
AFFIRMED
15