UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4167
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SHOUNTARIO DEVON WALKER,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (5:12-cr-00298-F-1)
Submitted: January 30, 2014 Decided: February 21, 2014
Before DAVIS, KEENAN, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Geoffrey W. Hosford, HOSFORD & HOSFORD, P.C., Wilmington, North
Carolina, for Appellant. Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Yvonne V. Watford-McKinney,
Assistant United States Attorneys, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Shountario Devon Walker pled guilty without a plea
agreement to possession with intent to distribute fifty grams or
more of cocaine (Count One), and distribution of cocaine (Counts
Two through Seven). Based on a total offense level of thirty-
one and a criminal history category of V, Walker’s Guidelines
range was 168 to 210 months’ imprisonment. Walker objected to
the presentence report (“PSR”), challenging the drug amount
attributed to him as relevant conduct, arguing that certain
amounts came from an unreliable source. The district court
overruled the objection and sentenced Walker to 180 months on
each count to run concurrently.
Walker’s sole claim on appeal is that his sentence is
procedurally unreasonable because the district court erred in
calculating his Guidelines range, namely, that the court
improperly determined drug amounts for relevant conduct
purposes. Walker’s claim is two-fold: (1) the statement of
cooperating witness Costa Pender was incredible and unreliable;
and (2) the Government failed to timely produce the identities
of the witnesses who participated in the offense conduct as
stated in the PSR.
First, Walker contends that the evidence supporting
the determination of his offense level was fatally unbelievable
and insufficient to carry the Government’s burden of proof
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because it consisted solely of the uncorroborated hearsay of an
unreliable cooperating witness. “[T]he government must prove
the drug quantity attributable to a particular defendant by a
preponderance of the evidence.” United States v. Bell, 667 F.3d
431, 441 (4th Cir. 2011). We review the district court’s
calculation of the quantity of drugs attributable to a defendant
for sentencing purposes for clear error. United States v.
Crawford, 734 F.3d 339, 342 (4th Cir. 2013); see also United
States v. Perez, 609 F.3d 609, 612 (4th Cir. 2010) (when
assessing a challenge to the district court’s application of the
Guidelines, this court reviews factual findings for clear error
and legal conclusions de novo). Under this standard, we will
reverse the district court’s finding only if we are “left with
the definite and firm conviction that a mistake has been
committed.” Crawford, 734 F.3d at 342 (internal quotation marks
and citation omitted).
When determining facts relevant to sentencing, such as
drug quantity, district courts are allowed to “‘consider
relevant information without regard to its admissibility under
the rules of evidence applicable at trial, provided that the
information has sufficient indicia of reliability to support its
probable accuracy.’” Crawford, 734 at 342 (quoting U.S.
Sentencing Guidelines Manual § 6A1.3(a) (2012)). In fact,
hearsay alone can provide sufficiently reliable evidence of drug
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quantity. Crawford, 734 F.3d at 342; see also United States v.
Wilkinson, 590 F.3d 259, 269 (4th Cir. 2010) (“[A] sentencing
court may give weight to any relevant information before it,
including uncorroborated hearsay, provided that the information
has sufficient indicia of reliability to support its
accuracy.”). Having reviewed the record, we conclude the
district court did not clearly err in finding that the
Government established drug quantity by a preponderance of the
evidence and that the disputed evidence had sufficient indicia
of reliability.
Walker also challenges the district court’s
consideration of the witnesses’ statements in the PSR as to drug
quantity on the ground that the Government failed to timely
disclose the identity of the cooperating witnesses. Because
Walker did not object on this basis below, we review this claim
for plain error. See United States v. Olano, 507 U.S. 725, 732
(1993). To establish plain error, Walker must show: (1) that an
error was made; (2) that the error was plain; and (3) that the
error affected his substantial rights. United States v.
Carthorne, 726 F.3d 503, 510 (4th Cir. 2013). Walker has not
satisfied this standard.
In support of this contention, Walker argues that the
district court erred in relying on certain statements by
cooperating witnesses that were not provided to him until after
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the first draft of the PSR and approximately one month before
sentencing. We conclude Walker cannot show plain error as
defense counsel was able to fully cross examine the Government’s
witnesses regarding their interviews with the relevant
cooperating witnesses. Therefore, Walker cannot show his
substantial rights were affected by any untimely disclosure.
See also United States v. Williams, 977 F.2d 866, 871 (4th Cir.
1992) (“[A] defendant has no right under the guidelines or the
federal rules to receive information about guideline ranges
prior to trial.”).
Accordingly, we affirm the judgment. We deny Walker’s
motion to file a pro se supplemental brief. 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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