UNITED STATES of America, Plaintiff-Appellee, v. James WHITELOW, Defendant-Appellant.
No. 13-6393
United States Court of Appeals, Sixth Circuit
Jan. 7, 2015
774 F.3d 381
Here, the ALJ credited Dr. Hutson‘s testimony that Steagall could perform only sedentary work and needed to change positions every hour for a few minutes. The ALJ then asked Dr. Parsons, a vocational expert, if significant numbers of sedentary-level jobs existed in the economy that Steagall could perform given his background. Dr. Parsons identified three qualifying jobs: a dispatcher of maintenance or utility services, an electrical-materials expediter, and an electrical-equipment assembler. A.R. at 576. Dr. Parsons also testified that these jobs would allow Steagall to sit or stand at will. See id. at 531-32, 577, 581. Steagall responds that the ALJ‘s hypothetical was flawed, because it did not incorporate Dr. Wunder‘s opinion that Steagall would be absent from work at least four times per month. As shown above, however, the ALJ properly gave no weight to Dr. Wunder‘s opinions. Thus, the ALJ‘s hypothetical accurately described Steagall‘s limitations, and Dr. Parsons‘s testimony is substantial evidence that Steagall is not disabled. See Wilson, 378 F.3d at 549.
Finally, Steagall identifies several parts of the record that he argues support his disability claim. He points to a 2008 MRI that showed impingement of his nerve root, a few consistencies between Dr. Wunder‘s findings and other parts of the record, his prescriptions for back-spasm and pain medication, and evidence that he says shows his condition is worsening. Regardless of whether this evidence is “substantial evidence” in support of a finding of disability, we still “must defer to an agency‘s decision ... so long as substantial evidence supports the conclusion reached by the ALJ.” Foster v. Halter, 279 F.3d 348, 353 (6th Cir.2001) (internal quotation marks omitted). Here, for the reasons discussed, substantial evidence supports the ALJ‘s finding that Steagall is not disabled.
The district court‘s judgment is affirmed.
OPINION
COLE, Chief Judge.
Defendant-Appellant James Whitelow challenges his sentence of 48 months of incarceration for conspiracy to possess cocaine with intent to distribute in violation of
I. BACKGROUND
Whitelow‘s indictment arose from an authorized wiretap of his co-defendant Anthony Nixon, who was the head of a drug trafficking organization in Lauderdale County, Tennessee. The wiretap revealed several calls between Whitelow and Nixon regarding the sale of cocaine. Further investigation yielded evidence of additional transactions of illegal drugs between Whitelow and other co-defendants. Ultimately, Whitelow and twenty others were arrested and charged in the conspiracy. Whitelow pleaded guilty to one count of
Prior to sentencing, the United States Probation Office prepared a Presentence Investigation Report (“PSR“), which concluded that Whitelow was responsible for 1.5284 kilograms of cocaine. The PSR calculated a base offense level of 26 under
Pursuant to a written plea agreement negotiated with the government, the defendant agreed to plead guilty and waive his right to appeal his sentence unless the district court exceeded the maximum guideline sentence for the conduct in question. The terms of the agreement provided that the government would recommend that the defendant be held responsible for 499 grams of cocaine and receive a three-level decreased adjustment for acceptance of responsibility. The agreement did not address the
The government made no objections to any of the findings in the PSR. The defendant filed a sentencing memorandum objecting to the two-level leadership adjustment. At the sentencing hearing, Whitelow specifically objected to the finding in paragraph 11 of the PSR that Whitelow used co-defendant Smith to hold his cocaine. Because this statement came from confidential informant and co-defendant Anthony Nixon, Whitelow argued that it was hearsay and speculative. The government countered that Nixon‘s statement had been corroborated by Smith‘s attorney when Smith pleaded guilty in a court appearance earlier that day, and that Smith had also stipulated to them when he pleaded guilty. Whitelow objected that neither Smith nor his attorney had been under oath or subject to cross-examination.
The district court clarified that it would not rely on Nixon‘s statement in making its sentencing determination because such testimony was not subject to cross-examination by Whitelow. “I don‘t take that as proven conclusively or by a preponderance of the evidence that it belonged to Mr. Whitelow. That‘s just what Nixon believed ...” R. 781, PageID 1784. The defendant‘s counsel did not make objections to any other factual statements in the PSR. He next argued that none of the other factual statements in the PSR were sufficient to establish by a preponderance of the evidence that Whitelow was a leader, organizer, manager, or supervisor.
The district court found that Whitelow was a leader or organizer in the criminal
Whitelow timely appealed his sentence. The government filed a motion to dismiss the appeal on June 10, 2014, based on the appellate-waiver provision in the plea agreement. Whitelow countered that his challenge fell outside the scope of the appellate-waiver provision because the plea agreement did not mention the two-level enhancement. On July 29, 2014, a panel of our court denied the motion to dismiss. See Order, No. 13-6393 (July 29, 2014). We found that Whitelow‘s 48-month sentence was above the maximum guidelines sentence of 46 months that would have applied had Whitelow not received the two-level leadership enhancement. Id. at 2. Because the plea agreement was silent as to the two-level enhancement, we held that the appellate-waiver provision was ambiguous and therefore did not preclude an appeal. Id.
II. ANALYSIS
A. Standard of Review
Due to the “factual nuances that a district court is better positioned to evaluate,” we review the legal conclusion that a defendant played an aggravating role under
We review compliance with
B. Sufficiency of the Evidence to Support Enhancement
A defendant qualifies for a
The district court observed that the statements in paragraphs 8 and 10 alone were sufficient to qualify Whitelow as a leader or organizer of the criminal activity. The district court cited a call in which Whitelow and his co-defendants Nixon, the leader of the organization, and Sanchez conspired to acquire one-half kilogram of cocaine from Sanchez‘s source of supply in Memphis. The court also noted that Whitelow began to purchase cocaine from others after Sanchez‘s source was arrested, and that Whitelow sold some of that cocaine to an individual known as Mikaboo who traveled from Nashville to purchase it from him.
Given the uncontroverted factual statements in the PSR and the deferential standard of review, the district court properly applied the enhancement, particularly since the two-level
C. Rule 32(i)(3)(B) Fact-Finding Process
Whitelow argues that the district court did not conduct the requisite fact-finding process under
The district court complied with Rule 32(i)(3)(B). Whitelow objected only to paragraph 11 of the PSR, and the district court fulfilled its Rule 32(i)(3)(B) obligation by stating that it would not consider that paragraph in deciding whether to apply the enhancement. In clarifying that its factual findings relied only on the PSR and not the testimony of Smith and his attorney, the district court then emphasized its reliance on the facts from paragraphs 8 and 10 in particular. The defendant did not object to the factual allegations in those two paragraphs and therefore the district court was permitted to rely on them. Therefore, we find that the district court satisfied its Rule 32(i)(3)(B) obligation to rule on disputed portions of the PSR.
III. CONCLUSION
For the foregoing reasons, we affirm Whitelow‘s sentence.
R. GUY COLE, JR.
CHIEF JUDGE