UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4084
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BRANDON ANTOWINE BARNETTE,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
Chief District Judge. (3:12-cr-00020-FDW-1)
Submitted: August 14, 2013 Decided: August 27, 2013
Before DAVIS, KEENAN, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Roderick M. Wright, Jr., WRIGHT LAW FIRM OF CHARLOTTE, PLLC,
Charlotte, North Carolina, for Appellant. Anne M. Tompkins,
United States Attorney, Melissa L. Rikard, Assistant United
States Attorney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Brandon Antowine Barnette appeals his
thirty-seven-month sentence imposed following his guilty plea
pursuant to a plea agreement to conspiracy to distribute and
possess with intent to distribute cocaine, in violation of
21 U.S.C.A. § 841(b)(1)(A) (West 2006 & Supp. 2013) and
21 U.S.C. § 846 (2006). We affirm.
The presentence report (“PSR”) calculated Barnette’s
Guidelines range under the U.S. Sentencing Guidelines Manual
(“USSG”) (2012) at thirty-seven to forty-six months’
imprisonment. Barnette moved for a downward departure or
variance from the Guidelines range, arguing that he should
receive a ten-level reduction to his base offense level under
USSG § 2D1.1 because it was increased from level sixteen to
level twenty-six based entirely on the cocaine quantity he
reported to law enforcement officials during a post-arrest
interview. The Government opposed Barnette’s request, arguing
that the PSR had properly calculated the drug quantity
attributable to him. As part of its opposition, the Government
also made an oral evidentiary proffer—based on investigative
information from the case agent—establishing that one of
Barnette’s co-conspirators had informed law enforcement
officials of Barnette’s involvement in the conspiracy prior to
Barnette’s arrest. The district court accepted the Government’s
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proffer and adopted the PSR’s calculation of Barnette’s
Guidelines range. On appeal, Barnette argues that the
Government committed reversible misconduct by failing to file a
written response to his motion for a downward departure or
variance and by opposing the motion with the oral evidentiary
proffer.
To succeed on a claim of prosecutorial misconduct, a
defendant must prove that the prosecution engaged in improper
conduct and that such conduct prejudiced his substantial rights
so as to deny him a fair proceeding. United States v. Allen,
491 F.3d 178, 191 (4th Cir. 2007). Because Barnette did not
raise his claim of prosecutorial misconduct in the district
court, we review it for plain error, affirming unless an error
was made, the error was plain, and the error affected Barnette’s
substantial rights. United States v. Alerre, 430 F.3d 681, 689
(4th Cir. 2005).
We conclude after review of the record and the
parties’ briefs that the Government did not engage in
misconduct. Evidentiary proffers may be used in the calculation
of the drug quantity attributable to a defendant for sentencing
purposes, accord United States v. Young, 609 F.3d 348, 358-59
(4th Cir. 2010) (vacating sentence and remanding for
resentencing where the district court failed to recognize its
authority to consider the drug quantity established by the
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Government’s evidentiary proffer introduced at sentencing), and
the plea agreement in this case provided that the parties could
argue their respective positions regarding departures or
variances from the Guidelines range. Barnette does not point to
anything in the record that would support the conclusion that
the Government was required to respond to his motion in writing.
The plea agreement also permitted the Government to inform the
district court of all facts pertinent to the sentencing process,
and Barnette does not contend that the oral proffer was not
pertinent to his sentencing or point to anything in the record
establishing that the proffer was inaccurate. *
Barnette fails to establish that any plain error was
committed in the manner in which the Government responded to his
motion for a downward departure or variance. Accordingly, we
affirm the district court’s 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
*
Although Barnette summarily asserts that the case agent
made “blatant misrepresentations,” he does not point to anything
in the record supporting this assertion.
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