Wake Forest Law Review
1Apr

Fourth Circuit Holds 121-Month Sentence Not an April Fool’s Joke

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By Joshua P. Bussen

Today, April 1, 2015, in the published criminal opinion United States v. Rangel, the Fourth Circuit affirmed the Eastern District of Virginia’s denial of the defendant’s motion to vacate his sentence for constitutionally ineffective assistance.

The Rangel Trial

In 1995 Abel Castillo Rangel was indicted for several crimes related to marijuana possession and trafficking.  At his trial, the government presented evidence that during the course of a police “sting operation,”  Rangel, along with several coconspirators, was caught in possession of marijuana while also operating a trafficking business.  Additional evidence showed that shortly after arresting Rangel, the police searched his house and found three additional bags of marijuana, totaling 5.25 pounds.

After the close of the prosecution’s and defendant’s case-in-chief, the court held a conference to discuss jury instructions.  The alleged issue arose because Rangel’s counsel did not request any instruction regarding drug weight and its bearing on the “Pinkerton principles—that is, [a determination of weight] based on drugs with which Rangel was directly involved or drugs that were reasonably foreseeable to him . . . in furtherance of the conspiracy.”

The jury convicted Rangel and found that the conspiracy involved more than 1,000 kg of marijuana—subjecting Rangel to a 120-month mandatory minimum.

28 U.S.C. § 2255

Rangel filed a pro se petition to vacate the conviction and sentence under 28 U.S.C. § 2255, for ineffective counsel.  Rangel claimed that the failure to request jury instructions regarding the Pinkerton principles at both the jury-instruction conference and upon the commencement of the initial appeal indicate that he did not have an effective counsel.

In the Fourth Circuit, to “establish a claim of ineffective assistance of counsel, a defendant must show (1) that counsel’s performance was [objectively] deficient, and (2) that the deficient performance prejudiced the defense.”

Was Rangel’s Attorney “Ineffective?”

The circuit judges found that Rangel’s appeal was meritless because the “sentence would have been the same even with a proper jury instruction.”  Even if the jury had used the Pinkerton principles to Rangel’s favor, he would still have been subject to a mandatory minimum of 120 months and a maximum of five years.  Rangel was sentenced on the low end of the sentencing guidelines (121 months), making it unlikely that the district court judge would have sentenced him differently even with the Pinkerton principles.  Additionally, the district court allowed Rangel to serve his sentences for several different crimes concurrently, therefore he would have been in prison for at least 120 months either way.

The Fourth Circuit’s Decision

The Fourth Circuit, finding no error on the part of the district court because the result in this case would have been the same with or without the Pinkerton principles, affirmed the conviction and sentence of Abel Castillo Rangel.

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27Mar

District Courts Cannot Provide Sentencing Credits

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By Kaitlin Price

Today, Friday March 27, 2015, the Fourth Circuit, in an unpublished decision, affirmed United States v. Chacon. The Petitioner was found guilty of violating 21 U.S.C. Section 846 for intent to distribute and distribution of cocaine and methamphetamine and appealed the district court’s sentencing. The Petitioner specifically alleged that the district court erred in not providing Chacon with sentencing credit for 208 days he had severed.

The Fourth Circuit did not find any merit to Petitioner’s claim. The Supreme Court in United States v. Wilson explained that the district court does not have the authority to grant sentencing credits only the attorney general has that power. Therefore, the district court did not err in not considering a sentencing credit because it did not have the authority to do so.

The Fourth Circuit affirmed the district court’s decision.

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26Mar

Fourth Circuit Affirms Sentencing Enhancement for Drugs & Firearms

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By Michael Mitchell

Today, in the criminal case of United States v. Pina, an unpublished per curiam opinion, the Fourth Circuit affirmed the decision of the District Court for the Western District of North Carolina, upholding the defendant’s conviction and enhanced sentence for drug charges and firearm possession.

Defendant Challenges Two-Level Sentencing Enhancement

The Fourth Circuit considered whether the district court properly applied a two-level enhancement to the defendant’s sentence for drug-related conspiracy and possession of a firearm.  The defendant also alleged that his guilty plea was coerced and his sentence was “substantively unreasonable.”

Defendant Convicted for Drug & Firearm Charges

The district court sentenced the defendant Jose Francisco Jiminez Pina to 180 months in prison after he pled guilty to conspiracy to distribute and possess with intent to distribute at least 500 grams of a mixture and substance containing a detectable amount of methamphetamine, and possession of a firearm in furtherance of a drug trafficking crime.  The district court sentenced the defendant to the mandatory-minimum 120 months for the drug conspiracy and 60 consecutive months for the firearm conviction.  Acknowledging that there were no meritorious issues on appeal under the framework of Anders v. California, the defendant challenged whether the two-level enhancement was properly applied and whether his case should be remanded to the district court for application of the Sentencing Guidelines.

Fourth Circuit Applies “Plain Error” Standard of Review

To evaluate whether the two-level enhancement was appropriate, the Fourth Circuit considered reasonableness “under a deferential abuse-of-discretion standard,” according to Gall v. United States.  The court found no “‘significant procedural error,” such as improper calculation of the sentencing range under the Guidelines or inadequate explanation of the sentence to the defendant.  Therefore, the Fourth Circuit instead reviewed the case for “plain error only.”

Mandatory Minimum Sentence Satisfies Sentencing Guidelines

The Fourth Circuit considered the defendant’s claim by evaluating the Sentencing Guidelines, finding that the defendant had been convicted of a crime wherein methamphetamine production or distribute was a principal purpose of the premises.  The district court applied the mandatory minimum sentence of 120 months for the defendant’s drug conviction, “the lowest sentence it could impose.”  Thus, the Fourth Circuit determined that there was “no plain error” in the calculation of the defendant’s sentence according to the Sentencing Guidelines.  The Fourth Circuit also found the sentence “substantively reasonable” based on a “totality of the circumstances.”  The defendant was also unable to overcome the rebuttable presumption in favor of the district court’s judgment with regard to his plea agreement allegations.

Fourth Circuit Affirms District Court’s Enhanced Sentence

The Fourth Circuit affirmed the district court’s judgment upholding the defendant’s conviction for conspiracy to distribute methamphetamine and firearm possession as well as the two-level sentencing enhancement for a total of 180 months in prison.

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25Mar

Fourth Circuit Affirms Sentencing Judgment

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By Katharine Yale

Yesterday, in the consolidated unpublished criminal case United States v. Owens, the Fourth Circuit reviewed the sentences of two defendants, Matthew Owens and Dennis Ross, and affirmed the district court’s judgment. On review, the two defendants asked the Fourth Circuit to determine whether the court below plainly erred in calculating Owens’s criminal history category or whether the court below imposed an unreasonable sentence on either defendant.

Owens Did Not Object to His Criminal History Calculation, Therefore the Standard of Review is Plain Error

To find plain error, the appellant must show that an error occurred, that it was plain, and that it affected the appellant’s substantial rights.   If plain error is found by the reviewing court, the correction of such error is still within the reviewing court’s discretion and such discretion should not be exercised “unless the error seriously affects the fairness, integrity or public reputation of judicial proceedings.”

Here, the Fourth Circuit found that the district court did not err in calculating Owens’s criminal history category because it properly added one criminal history point for his past shoplifting conviction.

In Reviewing the Reasonableness of a Conviction, the Reviewing Court Will Use an Abuse of Discretion Standard

First, under the abuse of discretion standard, the reviewing court will look for any significant procedural errors, which could include an improper calculation of the sentencing Guidelines range, selecting a sentence based on erroneous facts, or failing to explain the sentence.  If there is no procedural error, the reasonableness of the sentence will be reviewed using the totality of the circumstances. Using this test, the sentence must be “’sufficient, but not greater than necessary,’ to satisfy the goals of sentencing.”

On appeal, the court will presume that a sentence with a properly calculated advisory Guidelines range is reasonable, and the defendant bears the burden to rebut that presumption. He may only do so by showing that it is unreasonable when compared to the 18 U.S.C. § 3553(a) factors.

The Defendants’ Sentences are Reasonable

Here, the Fourth Circuit found that the district court committed no procedural error because both defendants received adequate, individualized explanations of their sentences and both sentences were within the Guidelines range. The Fourth Circuit also found that both sentences are substantively reasonable.

Fourth Circuit Finds No Meritorious Issues for Appeal and Affirms the District Court’s Sentencing Judgment

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23Mar

No Merit in Appeal of District Court Sentence

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By Marcus Fields

Today, in United States v. Montgomery, an unpublished decision, the Fourth Circuit affirmed the district court’s revocation of Montgomery’s supervised release and sentence of 22 months.

Brief Filed by Montgomery’s Counsel

Although Montgomery’s counsel did not believe there were any meritorious grounds for appeal, he filed a brief with the court raising four potential challenges to the district court’s decision.  This brief was filed in accordance with Anders v. California, a Supreme Court case outlining the responsibilities of court-appointed counsel to defendants on appeals of right when the counsel does not believe the appeal to be meritorious. The four grounds raised by Montgomery’s counsel were (1) the sentence was unreasonable, (2) Montgomery was denied chance to be heard at sentencing, (3) ineffective assistance of counsel, and (4) prosecutorial misconduct.  Montgomery was notified of his right to file a supplemental pro-se brief but declined to do so.

No Meritorious Grounds for Appeal

Anders requires the reviewing court to examine the entire record below for any meritorious grounds for appeal. Doing so, the Fourth Circuit found each of the potential grounds raised by Montgomery’s counsel to be without merit.  It noted that “a district court has broad discretion when imposing a sentence upon revocation of supervised release,” and because Montgomery did not challenge the reasonableness at trial, the Fourth Circuit reviewed the sentence for plain error.  Because Montgomery’s sentence was within the statutory maximum and not plainly unreasonable the Fourth Circuit affirmed the district court’s sentence.  The Fourth Circuit also found that Montgomery was given the chance to be heard and that there was no evidence of prosecutorial misconduct.  It declined to consider the ineffective assistance of counsel claim on direct appeal because such appeals are only allowed “where the record conclusively establishes ineffective assistance.” See United States v. Baptiste, 596 F.3d 214, 216 n.1 (4th Cir. 2010).

Counsel’s Ability to Withdraw From Representation

After affirming the district court’s judgment, the Fourth Circuit instructed Montgomery’s counsel to inform Montgomery of his right to petition the Supreme Court for review.  If Montgomery’s counsel believed such a petition to be frivolous, he would be allowed to move for leave to withdraw from representation.

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23Mar

Firearm Found in Home Where Drug Deal Went Down Enough for USSG § 2D1.1(b)(1) Enhancement

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By Elissa Hachmeister

Today, March 23, 2015, in the criminal case United States v. John A. Boyles, the Fourth Circuit affirmed in an unpublished per curiam opinion the district court’s judgment applying a two-level enhancement pursuant to U.S. Sentencing Guidelines Manual § 2D1.1(b)(1).

Enhancement for Drug Offense with Possession of a Dangerous Weapon

John A. Boyles pled guilty to aiding and abetting the distribution of crack cocaine. The district court imposed a 97-month sentence and a 3-year term of supervised release. The only issue on appeal was whether the district court erred in enhancing Boyles’ offense level under USSG § 2D1.1(b)(1). Application of the Guidelines enhancement is reviewed for clear error.

Under the Guidelines, a two-level increase in a defendant’s base offense level is appropriate when a drug offense involves possession of a dangerous weapon, including a firearm. USSG § 2D1.1(b)(1). The weapon at issue must be “possessed in connection with drug activity that was part of the same course of conduct or common scheme” as the drug offense that the defendant was convicted of. United States v. Manigan.

The Government need not prove that the defendant actually possessed the gun during any specific act. Instead, it is sufficient for the Government to show constructive possession of the firearm, which it may do through circumstantial evidence. Once the Government has offered proof of constructive possession, the burden shifts to the defendant to show that any connection between his possession of a firearm and his drug offense is “clearly improbable.” United States v. Harris.

Facts Support the Enhancement

The Fourth Circuit looked to the facts set forth in the presentence report, which Boyles did not contest, and concluded that the facts support the application of the enhancement. It was enough for the Fourth Circuit that the firearm was found in the bedroom of Boyles’ home, the same home where he had sold crack cocaine to a confidential informant and where drugs and drug paraphernalia were found. Under the circumstances, the district court’s application of the enhancement was not clear error.

The Fourth Circuit Affirmed

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20Mar

Cookie Cutter Sentencing Requires Explanation

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By Andrew Kilpinen

On Wednesday, March 18, 2015, in a published opinion U.S. v. Xavier Lymas, the 4th Circuit reversed and remanded three sentencing decisions from the Eastern District of North Carolina for failing to provide adequate explanations for why it varied from sentencing guidelines and not imposing individualized sentences and explanations.

Defendants Indicted for Convenience Store Robbery Spree

Defendants Xavier Lymas (“Lymas”), Lionel Newman (“Newman”), and Jessie Gomez (“Gomez”) were named in an eight-count indictment for a string of armed convenience store robberies in 2011. Between October 27 and October 30, a mixture of the three defendants succeeded at robbing two convenience stores, and failed at robbing two other convenience stores. Two .38 caliber handguns were used in all four attempts, and the spree included one store clerk receiving a pistol-whip to the back of the head.

District Court Colorfully Rejected Sentencing Guidelines and Imposed Identical Sentences

The district court judge likened sentencing guidelines to an ostrich sticking its head in the sand. The judge stated that all three defendants should receive an identical sentence in spite of the fact that each individual’s pre-sentence report recommended different sentences. Based on the violence of the crime, the threat to society, and the random introduction of violence into a commercial setting, the judge concluded that the sentencing guidelines underrepresented justice and sentenced all three defendants to a 200-month sentence. Defendants appealed claiming that the sentences were procedurally and substantively unreasonable.

4th Circuit Finds Procedural Error in Judge’s Failure to Explain Sentences

The 4th Circuit reviewed defendant’s sentences using an abuse-of-discretion standard under 18 U.S.C. §3553(a). The Court agreed with defendant’s argument that the district court committed procedural error because it offered no individualized rationale to justify the sentences it imposed. Specifically, the Court found that the lower court judge failed to sufficiently explain why it rejected the guidelines, and also failed to explain why it applied a “cookie-cutter” approach to sentencing the three defendants.

The 4th Circuit vacated the sentences and remanded the case for re-sentencing.

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6Mar

Presentence Reports Insufficient to Attribute Drug Quantities in a Conspiracy

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By Lauren D. Emery

On March 3, 2015, in the published criminal opinion, U.S. v. Flores-Alvarado, the Fourth Circuit vacated and remanded for re-sentencing the district court’s conviction against Marco Antonia Flores-Alvarado’s (“Flores-Alvarad0”).  Flores-Alvarado had previously plead guilty to a charge for conspiracy to distribute 5 kilograms or more of cocaine and 1000 kilograms or more of marijuana–for which he was sentenced to life imprisonment– and possession with intent to distribute more than 100 kilograms of marijuana–for which he was sentenced to a concurrent term of 480 months.

Quantity of Drugs Seized in Conspiracy Attributed to Flores-Alvarado

Flores-Alvarado and his co-defendant ran two drug trafficking organizations in North Carolina and used multiple sources in Mexico and the U.S. for marijuana and cocaine.  Due to his involvement in a conspiracy with his co-defendant, Flores-Alvarado was credited with trafficking 31,111.16 kilograms of marijuana which was seized from homes in Stokesdale, North Carolina and Lexington, Kentucky.

Because of the amount of drugs seized, his presentence report (“PSR”) assigned him a base level offense of 38, which after adjusting for additional factors, became an offense level of 43.  As a result of this level, and his Category II criminal history, the advisory sentencing range for both of his crimes was life imprisonment–but since the maximum sentence for the possession charge for 40 years it became 480 months.  If the drug quantities involved in the two home seizures were excluded, his offense level would drop to 41 and his sentencing range to 360 months to life.  During the lower court proceedings, the “government did not call any witnesses or present any other evidence about the drug quantities or the Stokesdale and Lexington Seizures.”

Presentence Reports are not Suffiicnet Evidence of Quantity of Drugs Trafficked by Defendant

The Fourth Circuit held that the information contained in the PSR is insufficient in and of itself to attribute the seized quantities of marijuana to Flores-Alvarado.  Instead, additional evidence must be presented to allow the court to make that factual determination.

Attributing Drug Quantities in a Conspiracy Inolves Specific Evidentiary Requirement

The Fourth Circuit reviews factual determinations of a sentencing court for clear error.  Here, it held that the dispute over the drug amounts seized in Lexington and Stokesdale “were not mere quibbles over the PSR’s drug totals, but were specific and factually grounded enough to raise legal and factual questions about whether the event described in the PSR supported attributing the seized quantities to Flores-Alvarado.”  This factual issue was left unresolved by the district court.

The Fourth Circuit held that, in order to attribute the “acts of others in jointly-undertaken criminal activity” the State would need to prove the scope of Flores-Alvarado’s agreement to the conduct and the foreseeability of the conduct.  The court declared that the district court had failed to make any such findings regarding Flores-Alvarado’s agreement to jointly undertake this criminal activity and that the PSR alone is insufficient to attribute the amounts from the two seizures to him.

Sentence Vacated and Remanded for Re-Sentencing

On remand, the district court must make specific factual determinations regarding Flores-Alvarado’s “agreement to jointly undertake criminal activity and whether those drug quantities were reasonably foreseeable to Flores-Alvarado.”

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5Mar

Fourth Circuit Upholds Life Sentence For Juvenile Defendant In Light of New Supreme Court Precedent

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By Michael Mitchell

Today, in the criminal case of Johnson v. Ponton, a published opinion, the Fourth Circuit affirmed the decision of the District Court for the Eastern District of Virginia, upholding the petitioner’s sentence of life imprisonment without parole for a capital murder and rape conviction.

Petitioner Challenges Life Sentence Based on New Supreme Court Precedent

The Fourth Circuit considered whether the district court’s dismissal of the petitioner’s habeas corpus petition challenging his life sentence.  The court evaluated whether the rule announced in the Supreme Court case Miller v. Alabama can apply retroactively on collateral review.

Mandatory Life Imprisonment Without Parole for Rapist & Murderer

The petitioner Shermaine Ali Johnson was convicted of capital murder and rape in 1998 at the age of sixteen.  Johnson was found guilty, and given his two prior rape convictions, two separate juries imposed the death sentence in spite of the his age.  However, the Supreme Court of Virginia commuted Johnson’s sentence to life imprisonment without the possibility of parole because he was under eighteen.  His conviction and sentence became final in 2005, and seven years later, the Supreme Court decided Miller v. Alabama, prompting Johnson to petition for collateral review in 2013.

Mandatory Life Sentence Without Parole for Children Violates the Eighth Amendment

In Miller v. Alabama, the Supreme Court held that mandatory life sentences without the possibility of parole imposed on a homicide offender who was under the age of eighteen at the time of the offense violates the Eighth Amendment.  The court was concerned with the inherent differences between children and adults in finding that the practice constituted cruel and unusual punishment, although the Miller rule stopped short of categorically barring the death penalty for children.

Judicial Stay Results in Supreme Court Clarification of Miller Rule

In 2014, the Fourth Circuit issued an abeyance pending the Supreme Court’s decision in Toca v. Louisiana, which would clarify whether the Miller rule could be applied retroactively.  However, the Supreme Court subsequently dismissed the writ of certiorari pursuant to the parties’ stipulation.  Instead, the Fourth Circuit relied on Miller‘s companion case, Jackson v. Hobbs.  In accord with Jackson, the court recognized that “an express holding a rule is retroactive, rather than mere application of the rule, is required to establish retroactivity.”  The Fourth Circuit found that the Arkansas Supreme Court’s application of the rule did not constitute an express holding, and therefore, that retroactive application of the Miller rule was not intended.

District Court’s Decision Affirmed by Fourth Circuit

The Fourth Circuit affirmed the district court’s judgment denying the petitioner’s challenge to his life sentence without parole, holding that the Miller rule cannot be applied retroactively in collateral review.

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27Feb

Review of Sentencing Moot

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By Kaitlin Price

On February 25, 2015, in an unpublished opinion of the criminal case, United States v. Robinson the Fourth Circuit dismissed the appeal as moot in regards to the sentencing challenge and affirmed the district court’s judgment.

Robinson’s Sentence Was Already Served 

Tyanna Robinson appealed the district court’s judgment which revoked her supervised release and sentenced her to 10 months imprisonment with an additional 12 month supervised release to follow. However, during the time in which the case was pending Robinson was released from prison and began serving her supervised release.

No Live Issue For Appeal 

The Fourth Circuit explained that because Robinson had already served her ten month imprisonment sentence the issue on appeal was moot. The Fourth Circuit explained that there must be “a live case or controversy” in order for the court to have Article III jurisdiction. The Court explained that the issue of whether the ten month sentencing was improper is moot because there was no longer a “live case or controversy.” The Court did address whether the district court’s decision to revoke supervised release and impose additional supervised release following the ten month sentencing was proper. The Fourth Circuit reviewed the record and found no meritorious issues for appeal.

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25Feb

Twelve Years Not Unreasonable for Crack Cocaine Distributor

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By Joshua Bussen

Today, February 25, 2015, in an unpublished decision of the criminal case United States v. McCollum, the Fourth Circuit affirmed the decision of the District Court for the District of South Carolina—convicting Makum Lamont McCollum of distributing crack cocaine and sentencing him to 151 months in prison.

The Anders v. California Issue

McCollum appealed his conviction pursuant to Anders v. California, 386 U.S. 738 (1967).  Under that precedent, a defendant may state that despite having no meritorious grounds for appeal, the appellate court should review whether the district court complied with Federal Rule of Criminal Procedure 11, and whether the district court’s sentence was reasonable.

The Conviction Complied with Fed. R. Crim. Pro. 11 and the Sentence Was Reasonable

At trial, McCollum did not move to withdraw his guilty plea nor did he object in any way—therefore the Fourth Circuit reviewed the Rule 11 issue under the high standard of plain error; finding that the district court fully complied with the rule.

McCollum also requested the Fourth Circuit review the district court’s sentence for reasonableness; which the Fourth Circuit reviewed under the deferential abuse of discretion standard.  The reasonableness of a sentence has both substantive and procedural elements.  First, the Fourth Circuit found the district court committed no procedural error.  The district court properly calculated the sentence using the Sentencing Guidelines, considered all of the 18 U.S.C. § 3553(a) (2012) factors, and explained the sentence correctly.  The district court also found no substantive error because: under the totality of the circumstances the Fourth Circuit found the sentence was within the Sentencing Guidelines; McCollum’s conduct was serious and thus warranted a longer sentence; and nothing in the record suggested the judge acted irrationally—therefore the sentence was not unreasonable.

151 Months Was Not an Unreasonable Sentence for McCollum

Finding no error in the trial court’s sentence, the Fourth Circuit affirmed the sentence of 151 months.

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24Feb

120 Months not Unreasonable for Heroin Distribution

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By Caroline E. Daniel

Today, in United States v. Thomas, an unpublished criminal opinion, the Fourth Circuit affirmed Defendant Demetrius Thomas’ (“Thomas”) conviction and sentence.

Thomas Questions Validity of plea and Length of Sentence

Thomas pled guilty to a violation of 21 U.S.C. § 841(a)(1) for distributing heroin, for which he was sentenced to 120 months.  He appealed, arguing that he did not enter into his guilty plea knowingly, that the sentence was unreasonable, and that his counsel had been ineffective.

Fourth Circuit Finds that Thomas Knowingly pled Guilty

Because he did not move to remove his guilty plea in district court, the Fourth Circuit reviewed Thomas’ guilty plea for plain error.  In reviewing the record, the Court determined that the district court had performed a proper plea colloquy, satisfying Rule 11.  The Court found that Thomas had been given the opportunity to give sworn statements, which reflected that his plea was “knowing, voluntary, and supported by a sufficient factual basis.”

Thomas’ Sentence was not Unreasonable

The Court reviewed both the procedural and substantive reasonableness of Thomas’ sentence under a “deferential abuse of discretion” standard.  The Fourth Circuit found that the lower court had satisfied both procedural and substantive requirements.

First, in terms of procedure, the Fourth Circuit held that the lower court had: (1) properly calculated Thomas’ sentencing range; (2) considered Thomas’ arguments for a lesser sentence; (3) considered the factors required by 18 U.S.C. § 3553(a); and (4) properly explained its analysis of those factors.  Next, the Fourth Circuit considered whether the sentence was substantively reasonable.  The Court explained that there is a presumption that a sentence within the Sentencing Guidelines range is reasonable, and that here, Thomas had not overcome that presumption.

Fourth Circuit Finds no Evidence of Ineffective Counsel

Finally, the Fourth Circuit found no evidence of ineffective counsel in the record.  The Court held that, even if counsel had been ineffective in some capacity, it would have been proper to raise this issue in a motion pursuant to 28 U.S.C. § 2255.  Thus, the Court dismissed this claim without merit.

Fourth Circuit Affirms both Verdict and Sentence

After analyzing each of Thomas’ concerns, the Fourth Circuit affirmed the district court’s decision.  Accordingly, Thomas was guilty of distributing heroin, and his sentence of 120 months stands.

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