UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4889
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KATHERINE MITCHELL,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Abingdon. James P. Jones, District
Judge. (1:13-cr-00001-JPJ-PMS-2)
Submitted: August 20, 2014 Decided: August 28, 2014
Before MOTZ, DUNCAN, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Larry W. Shelton, Federal Public Defender, Christine Madeleine
Lee, Research and Writing Attorney, Roanoke, Virginia, for
Appellant. Timothy J. Heaphy, United States Attorney, Zachary
T. Lee, Assistant United States Attorney, Abingdon, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Without the benefit of a written plea agreement,
Katherine Mitchell pled guilty to distributing methamphetamine,
and aiding and abetting the same, in violation of 21 U.S.C.
§ 841(a)(1), (b)(1)(C) (2012) and 18 U.S.C. § 2 (2012), and
distributing marijuana, and aiding and abetting the same, in
violation of 21 U.S.C. § 841(a)(1), (b)(1)(D) (2012) and 18
U.S.C. § 2. The district court subsequently sentenced Mitchell
to seventy-eight months’ imprisonment. On appeal, Mitchell
contends that the district court procedurally erred in
determining the drug quantity attributable to her for sentencing
purposes. We affirm.
The record establishes that, beginning in September
2012, Mitchell and her co-defendant and roommate, Gary Lee
Howell, were engaged in an ongoing venture to sell marijuana and
methamphetamine. On December 14, 2012, Howell brought
methamphetamine and marijuana to Mitchell, who was in the
hospital. Mitchell, in turn, sold 3.5 grams of methamphetamine
and one ounce of marijuana to a confidential informant.
Thereafter Howell left the hospital and was in a car accident.
A search of Howell’s vehicle revealed, among other evidence of
criminality, approximately ten pounds of marijuana and 340.2
grams of methamphetamine.
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At sentencing, Mitchell objected to the probation
officer’s recommendation that she be held responsible for the
drug quantities discovered in Howell’s car. The district court
overruled the objection, finding that, given “the degree of
involvement of these two parties[,] it was reasonably
foreseeable to [Mitchell] that [Howell] would have that quantity
of drugs[,]” and that Howell possessed these drugs in relation
to the jointly undertaken criminal activity. (J.A. 31). *
As explained in the Application Notes to the relevant
conduct guideline, a defendant “is accountable for all
quantities of contraband with which he was directly involved
and, in the case of a jointly undertaken criminal activity, all
reasonably foreseeable quantities of contraband that were within
the scope of the criminal activity that he jointly undertook.”
U.S. Sentencing Guidelines Manual (“USSG”) § 1B1.3 cmt. n.2
(2012). The Government must prove the drug quantity
attributable to the defendant by a preponderance of the
evidence. United States v. Bell, 667 F.3d 431, 441 (4th Cir.
2011). This court reviews 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
*
Citations to “J.A.” refer to the joint appendix filed by
the parties.
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339, 342 (4th Cir. 2013), cert. denied, 134 S. Ct. 1528 (2014);
see also United States v. Alvarado Perez, 609 F.3d 609, 612 (4th
Cir. 2010) (explaining that, 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).
We discern no clear error in the district court’s
ruling on this issue. Regardless of the specific quantities of
methamphetamine and marijuana Mitchell sold from her hospital
room, Howell’s possession of larger quantities of these drugs --
on the night that he couriered drugs to Mitchell for the
specific purpose of her sale to the confidential informant –-
was both in furtherance of their mutual objective of
distributing narcotics and reasonably foreseeable to Mitchell,
based on her participation in their jointly undertaken efforts
to distribute drugs.
Finally, we disagree with Mitchell’s claim that the
district court committed reversible error by citing to our
decision in United States v. Gilliam, 987 F.2d 1009 (4th Cir.
1993). Gilliam remains good law and, in addition to citing this
case, the district court also identified and applied the
standard set forth in USSG § 1B1.3(a)(1)(B).
For these reasons, we affirm the district court’s
judgment. We dispense with oral argument because the facts and
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legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional
process.
AFFIRMED
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