United States of America v. ROGER ALLEN AUSTIN, JR., a/k/a Fat Rog

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4053
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROGER ALLEN AUSTIN, JR., a/k/a Fat Rog,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Abingdon. James P. Jones, District
Judge. (1:14-cr-00010-JPJ-PMS-14)
Submitted: November 30, 2015 Decided: December 30, 2015
Before SHEDD, WYNN, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Laura Jill Koenig, KOENIG LAW FIRM, PLLC, Charlottesville,
Virginia, Charles Michael Henter, HENTERLAW, PLC,
Charlottesville, Virginia, for Appellant. Anthony P. Giorno,
United States Attorney, Jean B. Hudson, Assistant United States
Attorney, Charlottesville, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Roger Allen Austin, Jr., appeals his conviction and 121-
month sentence imposed following his guilty plea to conspiracy
to possess with intent to distribute methamphetamine, in
violation of 21 U.S.C. § 846 (2012). On appeal, Austin claims
that his guilty plea was not voluntary because the district
court failed to include in its explanation of the nature of the
charge against him that he would be held responsible at
sentencing for his coconspirators’ drug activities. Austin also
argues that the district court failed to make particularized
findings as to the scope of the criminal activity to which he
agreed and as to the reasonable foreseeability of his
coconspirators’ drug activities. We affirm.
Because Austin failed to raise either of his arguments in
district court, we review each for plain error. United States
v. Aplicano-Oyuela, 792 F.3d 416, 422 (4th Cir. 2015). To
establish plain error, Austin must demonstrate that an error
occurred, that the error was plain, and that the error affected
his substantial rights. Id. In the guilty plea context, a
defendant can establish the third factor by showing a reasonable
probability that he would not have pled guilty but for the Rule
11 omission. United States v. Massenburg, 564 F.3d 337, 343
(4th Cir. 2009). If the three-part plain error test is
satisfied, we must decide whether to cure the error, and will do

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so only if “the error seriously affects the fairness, integrity
or public reputation of judicial proceedings.” Aplicano-Oyuela,
792 F.3d at 422 (internal quotation marks omitted).
Prior to accepting a guilty plea, a trial court, through
colloquy, must inform the defendant of, and determine that he
understands, the nature of the charge to which the plea is
offered, the penalties he faces, and the various rights he is
relinquishing by pleading guilty. Fed. R. Crim. P. 11(b)(1);
United States v. DeFusco, 949 F.2d 114, 116 (4th Cir. 1991).
The court also must inform a defendant that it will consider any
applicable Sentencing Guidelines and the possibility of
departure; however, the court is not required to inform the
defendant of the applicable sentencing range before accepting a
guilty plea. Fed. R. Crim. P. 11(b)(1)(M); DeFusco, 949 F.2d at
118-19. This is because, “[u]nder the Guidelines, the maximum
sentence will never exceed the maximum provided by statute” and
as long as the defendant knows the maximum possible penalty at
the time the guilty plea is offered, Rule 11 has been satisfied.
DeFusco, 949 F.2d at 119. In reviewing the district court’s
compliance with Rule 11, we “accord deference to the trial
court’s decision as to how best to conduct the mandated colloquy
with the defendant.” Id. at 116.
Informing the defendant of the nature of the charge, “[i]n
most cases, . . . requires the court to recite the elements of

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the offense.” United States v. Ferrel, 603 F.3d 758, 762 (10th
Cir. 2010). The elements of a drug conspiracy are “(1) an
agreement between two or more persons to engage in conduct that
violates a federal drug law; (2) the defendant’s knowledge of
the conspiracy; and (3) the defendant’s knowing and voluntary
participation in the conspiracy.” United States v. Green, 599
F.3d 360, 367 (4th Cir. 2010). The amount of drugs involved is
not an element of the offense where, as here, the amount does
not operate to trigger either a statutory mandatory minimum or
an enhanced statutory maximum penalty. See 21 U.S.C.
§ 841(b)(1)(C) (2012); cf. Alleyne v. United States, 133 S. Ct.
2151, 2155 (2013) (holding that any fact increasing statutory
mandatory minimum penalty is element of crime); Apprendi v. New
Jersey, 530 U.S. 466, 490 (2000) (holding that, other than prior
conviction, any fact increasing maximum statutory penalty is
element of crime).
We conclude that the district court adequately advised
Austin of the nature of the charge at the time he entered his
guilty plea. Furthermore, by persisting in his guilty plea even
after having been advised of the 20-year maximum penalty, Austin
cannot show a reasonable probability that he would not have pled
guilty had the court advised him that his Sentencing Guidelines
range would be calculated based in part on the reasonably

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foreseeable conduct of his coconspirators. Thus, Austin fails
to establish plain error.
Turning to Austin’s sentencing claim, “the government must
prove the drug quantity attributable to a particular defendant
by a preponderance of the evidence.” United States v. Bell, 667
F.3d 431, 441 (4th Cir. 2011). “Under the Guidelines, the drug
quantities that may be attributed to the defendant include the
quantities associated with the defendant’s offense of conviction
and any relevant conduct.” United States v. Flores-Alvarado,
779 F.3d 250, 255 (4th Cir. 2015). “Relevant conduct in
conspiracy cases includes all reasonably foreseeable acts and
omissions of others in furtherance of the jointly undertaken
criminal activity.” Id. (internal quotation marks omitted); see
U.S. Sentencing Guidelines Manual § 1B1.3(a)(1)(B) (2014).
“[I]n order to attribute to a defendant for sentencing purposes
the acts of others in jointly-undertaken criminal activity,
those acts must have been within the scope of the defendant’s
agreement and must have been reasonably foreseeable to the
defendant.” Flores-Alvarado, 779 F.3d at 255 (emphasis
omitted). Accordingly, we require sentencing courts “to make
particularized findings with respect to both the scope of the
defendant’s agreement and the foreseeability of the conduct at
issue.” Id. at 256 (emphasis, brackets, and internal quotation
marks omitted).

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Generally, we review for clear error “the district court’s
calculation of the quantity of drugs attributable to a defendant
for sentencing purposes.” United States v. Crawford, 734 F.3d
339, 342 (4th Cir. 2013) (internal quotation marks omitted).
Under this standard, we will reverse the district court’s
finding only if we are “left with the definite and firm
conviction that a mistake has been committed.” Id. (internal
quotation marks omitted). However, because Austin did not
object at sentencing to the district court’s findings, we review
only for plain error. See Aplicano-Oyuela, 792 F.3d at 422.
Our review of the record leads us to conclude that Austin fails
to establish plain error as to the district court’s findings
regarding the scope of the conspiracy and the foreseeability of
Austin’s coconspirators’ actions.
Accordingly, we affirm the district court’s judgment. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED

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