Narrative Opinion Summary
In this case, the defendant was convicted of conspiracy and distribution of crack cocaine, receiving a concurrent sentence of 168 months' imprisonment. Upon appeal, the conspiracy conviction was reversed, leading to its dismissal on remand, but the 168 months' sentence was reimposed for the distribution charge. The appointed counsel, finding no substantial grounds for appeal, withdrew, with the court agreeing and dismissing the appeal. The sentencing was based on a determination of 148.8 grams of crack cocaine, challenged by the defendant who argued for a lower quantity based on forensic reports. However, the court upheld the original calculation, noting the defendant's prior waiver of any objections. The court also evaluated potential legal arguments regarding testimony admissibility and sentencing guidelines but found no merit. The defendant's claims for a reduction based on acceptance of responsibility and a criminal history point adjustment were dismissed, as they were either not raised previously or lacked legal substance. Ineffective assistance of counsel was not reconsidered due to absence of new evidence. Ultimately, the motion to withdraw by counsel was granted, and the appeal was dismissed, leaving the sentence intact.
Legal Issues Addressed
Acceptance of Responsibility under U.S.S.G. § 3E1.1subscribe to see similar legal issues
Application: The defendant's late attempts to engage with the probation office did not qualify for a sentence reduction for acceptance of responsibility, as he did not claim this reduction at the original sentencing.
Reasoning: However, Mr. Tabb's late attempts to engage with the probation office do not meet the rare situation criteria for such a reduction.
Applicability of Kumho Tire and Daubert Standards in Sentencingsubscribe to see similar legal issues
Application: The court noted that the rules of evidence do not bind sentencing judges so long as the information has sufficient reliability, thus questioning the applicability of Kumho Tire and Daubert standards.
Reasoning: The applicability of these cases is questionable since sentencing judges are not bound by the rules of evidence if the information has sufficient reliability.
Criminal History and Similarity of Offenses under U.S.S.G. § 4A1.2(c)(1)subscribe to see similar legal issues
Application: The argument that a criminal history point should not have been attributed due to similarity with criminal trespass was dismissed as frivolous, having not been raised at the original sentencing.
Reasoning: This argument was not raised at his original sentencing, and even if it were, it is deemed frivolous since offenses are not considered similar solely based on their placement within the same section of the criminal code.
Ineffective Assistance of Counselsubscribe to see similar legal issues
Application: The court declined to consider the ineffective assistance of counsel claim due to the absence of new evidence supporting this claim.
Reasoning: The court previously declined to consider this claim, and no new evidence of ineffective assistance has emerged, making it unsuitable for adjudication.
Sentencing Guidelines and Drug Quantity Calculationsubscribe to see similar legal issues
Application: The court upheld the drug quantity calculation used at sentencing, emphasizing the defendant's previous waiver of contesting the calculation.
Reasoning: Tabb had previously waived his right to contest the drug quantity calculation during the original sentencing by concurring with the presentence report.