United States v. Bolton
| Decision Date | 07 June 2017 |
| Docket Number | No. 16-4077, No. 16-4078,16-4077 |
| Citation | 858 F.3d 905 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Lashaun Christopher BOLTON, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Lashaun Christopher Bolton, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fourth Circuit |
ARGUED: Cheryl Denise Andrews, HOLTON LAW FIRM, PLLC, Winston-Salem, North Carolina, for Appellant. Sandra Jane Hairston, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee. ON BRIEF: Ripley Rand, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee.
Before NIEMEYER, MOTZ, and THACKER, Circuit Judges.
Affirmed by published opinion. Judge Thacker wrote the opinion, in which Judge Niemeyer and Judge Motz joined.
Lashaun Christopher Bolton ("Appellant") appeals his consolidated sentence for convictions in two separate cases—one involving marijuana distribution and the other involving cocaine distribution. Following his indictment and arrest on the marijuana charges, law enforcement discovered firearms, cash, and more marijuana in Appellant's bedroom. Then, while released on bond for the marijuana charges, Appellant was arrested on the cocaine charges.
At the consolidated sentencing hearing, Appellant attempted to show that the firearms were connected to hunting in order to avoid a sentence enhancement for possessing a firearm in connection with drug distribution. But the district court rejected this claim and applied the enhancement. Next, although Appellant sought an offense-level reduction given his lack of criminal history, the district court also rejected this argument, holding Appellant was ineligible for the reduction because he possessed a firearm in connection with his offense. Additionally, given Appellant's arrest while released on bond, the district court refused to reduce Appellant's offense level for acceptance of responsibility, despite cooperation he provided the Government. Finally, the court varied upward from Appellant's Sentencing Guideline range by 40 months.
Appellant now challenges each of these sentencing determinations. Finding no reversible error, we affirm.
On November 24, 2014, a grand jury in the Middle District of North Carolina returned a multi-count indictment charging multiple defendants, including Appellant, with conspiracy to distribute marijuana, in violation of 21 U.S.C. §§ 846 and 841(a)(1) (the "Marijuana Indictment"). Specifically, the Marijuana Indictment charged Appellant with conspiring to distribute marijuana and using a communication facility to facilitate the conspiracy. On December 4, 2014, Appellant was arrested pursuant to the Marijuana Indictment. He consented to a search of his residence. During the search, a 12-gauge shotgun and 22-250 bolt action rifle were discovered in Appellant's bedroom along with boxes of ammunition, approximately 400 grams of marijuana, and $912 in cash. A records search indicated that the shotgun was reported stolen. On December 16, 2014, Appellant was released on bond.
On February 25, 2015, Appellant pled guilty to conspiracy to distribute marijuana and using a communication facility to facilitate drug trafficking per the Marijuana Indictment. The factual basis in support of the plea agreement stated that throughout September 2012, law enforcement intercepted cellular phone calls between Appellant and another individual indicating that the two conspired to distribute around eight pounds of marijuana "during the period alleged in the indictment." J.A. 44–47.1 The conspiracy alleged in the indictment lasted "[f]rom in or about 2012, continuing up to and including in or about February 2013." Id. at 15.2 Following the guilty plea, the district court also granted Appellant's motion to modify his terms of release to remove an electronic location monitor so as to allow him to return to work. The court scheduled a sentencing hearing on the Marijuana Indictment for June 3, 2015.
On April 18, 2015, Drug Enforcement Administration agents discovered Appellant was involved in cocaine distribution. As a result, on April 21, 2015, the court revoked Appellant's bond and issued a warrant for his arrest. Two days later, on April 23, 2015, Appellant surrendered to law enforcement. After Appellant's surrender, on May 6, 2015, he met with law enforcement for debriefing and provided information about the other individuals involved in the cocaine distribution. On May 18, 2015, the district court continued Appellant's sentencing for the marijuana charges to August 26, 2015.
On June 30, 2015, while Appellant was awaiting sentencing on the marijuana charges, a grand jury in the Middle District of North Carolina returned a second indictment against Appellant and other defendants, charging them with conspiracy to distribute 500 grams or more of a substance containing cocaine hydrochloride, in violation of 21 U.S.C. §§ 846 and 841 (the "Cocaine Indictment").
On August 7, 2015, Appellant pled guilty to the Cocaine Indictment. The factual basis for Appellant's plea provided that on April 16, 2015, Appellant sold 3.4 grams of marijuana to an individual working as a confidential informant and offered to sell the individual a kilogram of cocaine hydrochloride. Then, over the next two days, Appellant facilitated a transaction of two kilograms of cocaine to an undercover officer.
The district court consolidated Appellant's marijuana and cocaine cases and set a sentencing hearing for January 12, 2016. Pursuant to the United States Sentencing Guidelines (the "Guidelines"), the presentence report ("PSR") grouped Appellant's offenses to arrive at a base offense level of 30, established by the amounts of drugs attributable to him. The PSR added two offense levels for possession of a firearm during the offense, and two offense levels for maintaining premises for drug distribution. The PSR did not recommend a downward adjustment for acceptance of responsibility because Appellant did not withdraw from criminal activity after his release on the marijuana charges. The PSR thus arrived at a total offense level of 34.
At the consolidated sentencing hearing, Appellant objected to the proposed drug amounts attributable to him as well as to the enhancements for firearm possession and maintaining premises for drug distribution. Appellant also objected to the PSR's failure to propose downward adjustments for acceptance of responsibility or for a "safety valve" reduction, which allows departures from otherwise mandatory sentences for qualifying first-time offenders. United States v. Fletcher , 74 F.3d 49, 56 (4th Cir. 1996).3
In response, the Government presented testimony from an investigating agent to substantiate the amount of drugs attributable to Appellant. To rebut the firearm possession enhancement and support a safety valve reduction, Appellant called his cousin, Santonio Bolton ("Santonio"), who testified that the firearms were for hunting purposes. To corroborate Appellant's hunting scenario, Santonio testified that he grew up hunting with Appellant, and that Appellant acquired the guns in question during hunting season. Santonio also testified that the rifle belonged to another cousin and that Appellant purchased the reportedly stolen shotgun. The defense also submitted a hunting license Appellant purchased in October of 2013 that expired the following year. Further, the defense pointed out that the firearms were discovered outside of the timeframe of the conspiracy alleged in the Marijuana Indictment. Additionally, Appellant argued he was entitled to an offense-level reduction for acceptance of responsibility based on his prompt surrender to authorities, cooperation, and agreement to plead guilty.
The district court sustained Appellant's objection to the amount of drugs attributable to him but overruled each of his remaining objections. As to the firearm possession enhancement, the district court discredited Santonio's testimony and reasoned that although law enforcement discovered the guns outside of the timeframe of illegal activity alleged in the Marijuana Indictment, the surrounding circumstances suggested Appellant was dealing marijuana when law enforcement arrested him and discovered the firearms. And "because of the weapon enhancement," the district court held, "the safety valve would not ... apply." J.A. 178. Finally, the district court declined to adjust Appellant's sentence for acceptance of responsibility because he resumed his criminal activity after his first arrest.
In light of these rulings, the court arrived at a total offense level of 30 and criminal history category of I, resulting in a final Guidelines range of 97 to 121 months' imprisonment. The district court then varied upward from this advisory range and sentenced Appellant to 161 months' imprisonment. To arrive at this sentence, the court imposed 40 months for both counts related to the marijuana charges to run concurrently, and 121 months for the cocaine charges to run consecutive to the sentence for the marijuana charges. Appellant timely appealed.
"As a general matter, in reviewing any sentence whether inside, just outside, or significantly outside the Guidelines range," we review for an abuse of discretion. United States v. McDonald , 850 F.3d 640, 643 (4th Cir. 2017) (internal quotation marks omitted) (quoting Gall v. United States , 552 U.S. 38, 41, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007) ). Pursuant to this standard, we review the district court's legal conclusions de novo and factual findings for clear error. United States v. Gomez-Jimenez , 750 F.3d 370, 379–80 (4th Cir. 2014), as corrected (Apr. 29, 2014). We first review for procedural errors; "[i]f and only if," we find no such procedural errors may we assess the substantive reasonableness of a sentence. McDonald , 850 F.3d at 643 (alteration in original) (quoting United States v. Carter , 564 F.3d 325, 328 (4th Cir. 2009) ).
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