and 02-3068 UNITED STATES OF AMERICA v. Angelo Carter

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 02-2491 and 02-3068
UNITED STATES OF AMERICA
v.
ANGELO CARTER,
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Crim. No. 00-00024-13)
Honorable Ronald L. Buckwalter, District Judge
Submitted under Third Circuit LAR 34.1(a)
April 22, 2004
BEFORE: SCIRICA, Chief Judge, and ROSENN and GREENBERG, Circuit Judges
(Filed: April 23, 2004)
OPINION OF THE COURT
GREENBERG, Circuit Judge.
A grand jury returned a superseding indictment charging Angelo Carter in three
counts with: count one, conspiracy to distribute and to possess with intent to distribute
more than 50 grams of crack cocaine base, more than 100 grams of a mixture or substance

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containing a detectable amount of heroin, and cocaine, marijuana, and phencyclidine
within 1,000 feet of a public housing project in violation of 21 U.S.C. § 846; count two,
conspiracy to travel in interstate commerce to commit murder in violation 18 U.S.C. §
1958(a); count three, conspiracy to affect commerce by robbery in violation of 18 U.S.C.
§ 1951(a), (b)(1), and (b)(3). Carter pleaded not guilty but a jury convicted him on all
three counts at the ensuing trial.
In calculations, which neither party challenges on this appeal, the district court
concluded that Carter’s total offense level was 37 which, when combined with his
criminal history category of IV, yielded a sentencing range of 292 to 365 months. The
court sentenced Carter to a custodial term of 292 months to be followed by a ten-year
term of supervised release.
Carter appeals, summarizing his argument as follows:
Appellant challenges the amount of drugs attributed to him during
the course of the conspiracy. This challenge is two fold. Appellant
contends that in his diminished role as a ‘gatekeeper’ he should not be
deemed as culpable as the others. Essentially that there should be a further
departure for this diminished role pursuant to U.S.S.G. Section 5K2.0.
Appellant challenges the sufficiency of the evidence on Count two
and Count three of the indictment. Appellant’s presence during the
planning of the robbery/murder plot and wiping of bullets was insufficient
to establish his participation as a co-conspirator.
Appellant’s br. at 10. We note, however, that notwithstanding Carter’s request for “a
further departure” from the guideline range, the court never departed in the first place,
though it did make calculations in establishing that range that were in part favorable to

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Carter.
Our standards of review on this appeal are well settled. On the sufficiency of the
evidence argument we view the evidence in the light most favorable to the government as
the verdict winner and will sustain the conviction if there was substantial evidence to
support it so that the jury could have found him guilty beyond a reasonable doubt. See
United States v. Pungitore, 910 F.2d 1084, 1129 (3d Cir. 1990). With respect to the
departure argument because, as Carter acknowledges, he did not raise the contention in
the district court we review the claim on a plain error basis. See United States v. Couch,
291 F.3d 251, 252-53 (3d Cir. 2002).
We have reviewed this matter and have concluded that there is no merit to either of
Carter’s contentions. Indeed the evidence shows that Carter was at the heart of the
conspiracy and thus United States v. Pressler, 256 F.3d 144, 153 (3d Cir. 2001), which he
correctly cites for the proposition that tangential connections among various persons are
not sufficient to establish the existence of a conspiracy, appellant’s br. at 21, is not
helpful to him. Finally, the court did not commit a plain error or any error at all in not
departing downward. Moreover, as the government suggests, see appellee’s br. at 34,
“there is no basis for meaningful appellate review of a district court’s failure to grant an
unrequested departure,” at least to the extent that the appellant’s argument is based on
factual contentions as determinations of fact can be reviewed only for clear error. See
United States v. Carr, 25 F.3d 1194, 1207 (3d Cir. 1994).

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The judgment of conviction and sentence entered May 28, 2002, and the order
denying Carter’s motion for a judgment of acquittal and a new trial entered July 29, 2002,
will be affirmed.

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