United States of America v. Leslie Dominic Musgrove

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4967
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
LESLIE DOMINIC MUSGROVE,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Elkins. John Preston Bailey,
Chief District Judge. (2:11-cr-00016-JPB-DJJ-11)
Submitted: September 27, 2013 Decided: October 30, 2013
Before WILKINSON, DAVIS, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Dorwin J. Wolfe, WOLFE LAW FIRM, Elkins, West Virginia, for
Appellant. William J. Ihlenfeld, II, United States Attorney,
Shawn Angus Morgan, Assistant United States Attorney,
Clarksburg, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Leslie Dominic Musgrove was convicted of conspiracy to
possess with intent to distribute and to distribute cocaine and
methamphetamine in violation of 21 U.S.C. § 846 (2006) and of
aiding and abetting the possession with intent to distribute
more than 500 grams of cocaine in violation of 21 U.S.C.A.
§§ 841(a)(1), (b)(1)(B) (West 2006 & Supp. 2013). He received
concurrent 360-month sentences. Musgrove now appeals. We
affirm.
I
Musgrove contends that the district court erred in
denying the last of several motions for a continuance, claiming
that the denial prevented counsel from adequately preparing for
trial. We review for abuse of discretion the district court’s
denial of a continuance. United States v. Williams, 445 F.3d
724, 739 (4th Cir. 2006). “[B]road discretion must be granted
trial courts on matters of continuances; only an unreasoning and
arbitrary insistence upon expeditiousness in the face of a
justifiable request for delay violates the right to the
assistance of counsel.” Morris v. Slappy, 461 U.S. 1, 11-12
(1983) (internal quotation marks omitted). Even if the
defendant can demonstrate an abuse of discretion, he also must
show that the denial of a continuance specifically prejudiced

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his case. United States v. Hedgepeth, 418 F.3d 411, 423-24 (4th
Cir. 2005).
We hold that there was no abuse of discretion.
Notably, counsel represented to the court that he was prepared
for trial and that the motion for a continuance was made at
Musgrove’s insistence. Given counsel’s representation, we
cannot conclude that the motion for a continuance was justified.
Further, Mugrove only speculates that the outcome of trial would
have been different had the continuance been granted.
II
Musgrove contends that the district court erred when
it failed to compel the attendance of three defense witnesses.
In a witness list submitted to the court prior to trial, counsel
identified three witnesses as “probable.” Those witnesses were
subpoenaed, and they testified at trial. Counsel did not
request that the court issue subpoenas for the remaining three
witnesses, whose addresses were, according to the witness list,
unknown. Because the court was not asked to do anything with
respect to securing the attendance of these witnesses, there was
no error.
III
Musgrove argues that the district court erred when it
declined to give a proposed jury instruction that described the
mechanics of a substantial assistance motion. We review for

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abuse of discretion the decision to give or to refuse to give a
jury instruction. United States v. Sarwari, 669 F.3d 401, 410-
11 (4th Cir. 2012). With respect to the refusal to give a
proffered instruction, we have stated:
A district court commits reversible error . . . only
when the instruction (1) was correct; (2) was not
substantially covered by the court’s charge to the
jury; and (3) dealt with some point in the trial so
important, that failure to give the requested
instruction seriously impaired the defendant’s ability
to conduct his defense. . . . Moreover, we do not view
a single instruction in isolation; rather we consider
whether taken as a whole and in the context of the
entire charge, the instructions accurately and fairly
state the controlling law.
United States v. Passaro, 577 F.3d 207, 221 (4th Cir. 2009)
(internal quotation marks and citations omitted).
We hold that the district court did not abuse its
discretion in refusing Musgrove’s proffered instruction. The
charge given to the jury “substantially covered” the proffered
instruction because it emphasized that the jury was to consider
whether a witness had testified as he or she did in the hope of
gaining a benefit, such as a lesser sentence. Knowing the
procedure involved in a substantial assistance motion would not
have assisted the jury in evaluating a witness’ motivation to
testify in a certain way.
IV
Musgrove also claims that the district court erred
when it refused his pro se request to call prosecution witness

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Shawn Rohrbaugh at sentencing. Information supplied by
Rohrbaugh in a pretrial debriefing was used to calculate
Musgrove’s relevant conduct.
Under Fed. R. Crim. P. 32(i)(2), the sentencing court
“may permit the parties to introduce evidence on the objections
[to the presentence investigation report].” The Guidelines
provide that if “any factor important to the sentencing
determination is reasonably in dispute, the parties shall be
given an adequate opportunity to present information to the
court regarding that factor.” U.S. Sentencing Guidelines Manual
§ 6A1.3(a) (2011). The Guidelines contemplate the presentation
of various forms of evidence on disputed factors, including
statements of counsel and affidavits of witnesses. U.S.
Sentencing Guidelines Manual § 6A1.3 cmt. (2011). Thus, while
“the court must ensure that the parties have an adequate
opportunity to present relevant information [on a disputed
issue],” there is no affirmative requirement that the court
allow live testimony. Id. As the Tenth Circuit explained, “the
court is allowed broad discretion in deciding whether to permit
the introduction of testimony or other information.” United
States v. Gines, 964 F.2d 972, 977 (10th Cir. 1992). The
defendant does not have the right to introduce live testimony on
a disputed issue, but he must be afforded an “adequate”

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opportunity to present relevant information to the court. Id.
at 978.
Here, the district court did not abuse its discretion
in refusing the request to call Rohrbaugh at sentencing.
Musgrove had the opportunity to dispute — and did dispute —
relevant conduct attributed to him by Rohrbaugh, and the
district court overruled his objection. Further, the court made
it clear that it would not credit anything Rohrbaugh might say
at sentencing, given the court’s opinion that Rohrbaugh had lied
at trial.
V
Musgrove’s offense level was increased by two points
for obstruction of justice based on his influencing Rohrbaugh’s
testimony and based on his attempts to influence the testimony
of prosecution witness Danielle Corbin. See USSG § 3C1.1. The
court overruled Musgrove’s objection to the enhancement, finding
that obstruction of justice was established. Musgrove claims
that the enhancement constituted error.
In assessing whether a sentencing court correctly
applied the Guidelines, we review the district court’s factual
findings for clear error and its legal conclusions de novo.
United States v. Osborne, 514 F.3d 377, 387 (4th Cir. 2008). An
enhancement for obstruction of justice is proper if:

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(1) the defendant willfully obstructed or impeded, or
attempted to obstruct or impede, the administration of
justice with respect to the investigation,
prosecution, or sentencing of the instant offense of
conviction, and (2) the obstructive conduct related to
(A) the defendant’s offense of conviction and any
relevant conduct; or (B) a closely related offense.
USSG § 3C1.1. An application note provides that the enhancement
should apply where a defendant is “threatening, intimidating, or
otherwise unlawfully influencing a co-defendant, witness, or
juror, directly or indirectly, or attempting to do so[.]” USSG
§ 3C1.1 cmt. n.4(A).
At Musgrove’s request, Rohrbaugh wrote a letter in
which he denied that he and Musgrove were involved in selling
drugs and that any telephone calls concerning methamphetamine
trafficking were between himself and a person other than
Musgrove. This letter was contrary to the overwhelming evidence
at trial. Additionally, Corbin reported to the probation
officer that Musgrove used third parties to threaten her in an
effort to stop her from cooperating with authorities and
testifying against Musgrove. Under these circumstances, the
enhancement for obstruction of justice was proper.
VI
We accordingly affirm. We dispense with oral argument
because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the

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decisional process. The motions to file a pro se brief and pro
se supplemental appendix are denied.
AFFIRMED

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