UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4573
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
CALVIN DWIGHT MITCHELL, a/k/a Calio,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:12-cr-00270-BO-1)
Submitted: October 23, 2014 Decided: December 11, 2014
Before KEENAN, DIAZ, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
W. Andrew LeLiever, THE LAW CORNER, Raleigh, North Carolina, for
Appellant. Thomas G. Walker, United States Attorney, Jennifer
P. May-Parker, Kristine L. Fritz, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Calvin Mitchell was charged with: conspiracy to
distribute and to possess with intent to distribute 280 grams or
more of cocaine base and a quantity of cocaine (Count One); and
distribution of cocaine (Count Two). A jury convicted him on
both counts. In its special verdict, the jury found that the
conspiracy involved only cocaine. Mitchell received an
aggregate sentence of 360 months in prison. He now appeals. We
affirm.
I
At trial, evidence was introduced that, following his
arrest, police officers advised Mitchell of his Miranda rights.
During an interview, Mitchell admitted that he had distributed
cocaine on May 24, 2012. Additionally, he stated that he had a
long history of drug distribution. Notably, he said that,
between 2001 and the time of his arrest, he had bought between
six and seven ounces of crack cocaine per week from Nate
McFadgen. He also reported that, for over a decade, he had
purchased seven ounces of crack per week from another individual
whom he refused to name.
There was also testimony at trial concerning
Mitchell’s three previous state convictions for dealing crack.
We hold that the district court did not abuse its discretion in
admitting this testimony. Not only did the testimony tend to
2
corroborate Mitchell’s statements during his debriefing, but it
was pertinent to issues such as intent and knowledge. The
evidence thus was not introduced to prove Mitchell’s character
in order to show he acted in accordance therewith, but for
another, permissible purpose. See Fed. R. Evid. 404(b).
Further, the evidence was relevant, necessary and reliable, and
its probative value was not outweighed by its prejudicial
nature. See United States v. Siegel, 536 F.3d 306, 317 (4th
Cir. 2008); United States v. Queen, 132 F.3d 991, 994-95 (4th
Cir. 1997).
II
Mitchell contends that, because the jury found that
the conspiracy did not involve crack cocaine, the district court
erred in including crack as relevant conduct when calculating
his base offense level. In assessing whether a sentencing court
correctly applied the Guidelines, the district court’s factual
findings are reviewed for clear error and its legal conclusions
are reviewed de novo. United States v. Osborne, 514 F.3d 377,
387 (4th Cir. 2008).
“[A] sentencing court may consider uncharged and
acquitted conduct in determining a sentence, as long as that
conduct is proven by a preponderance of the evidence.” United
States v. Grubbs, 585 F.3d 793, 799 (4th Cir. 2009). In ruling
that the Government had met its burden of proof, the district
3
court relied on the trial record. Based on Mitchell’s
admissions concerning his long-term dealing in crack cocaine and
other evidence discussed above, we hold that the court did not
err in including a quantity of crack cocaine when computing
relevant conduct.
III
Mitchell’s offense level was enhanced by two levels
based on obstruction of justice. See U.S. Sentencing Guidelines
Manual § 3C1.1 (2012). He contends that this enhancement was
erroneous.
The enhancement stemmed from Mitchell’s confrontation
with a witness who was cooperating with federal officials.
Mitchell, who knew he was under investigation, approached the
witness, told him he was aware the witness was providing
information to federal agents, and attempted to engage the
witness in a physical confrontation. This conduct suffices to
establish that Mitchell threatened the witness with the
intention of discouraging or prohibiting his further cooperation
and, accordingly, justified the enhancement. See USSG § 3C1.1,
cmt. n.4(A).
IV
We accordingly affirm. We dispense with oral argument
because the facts and legal contentions are adequately presented
4
in the material before the Court and argument would not aid the
decisional process.
AFFIRMED
5