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The Honorable James M. Moody, United States District Judge for the Eastern

District of Arkansas.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 09-2681

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Eastern District of Arkansas.

Ra'Qim Farad al-Salahuddin, *

formerly known as Rayfus Ulester * [UNPUBLISHED]

Dukes, Jr., *

* 

Appellant. *

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Submitted: March 8, 2010

Filed: Mach 15, 2010

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Before BYE, ARNOLD, and COLLOTON, Circuit Judges.

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PER CURIAM.

Ra'Qim Farad al-Salahuddin, formerly known as Rayfus Dukes, Jr., appeals the

district court's1

 sentence of 48 months' incarceration. Dukes contends the court erred

at sentencing by considering a charge dismissed pursuant to a plea agreement; Dukes

contends the government did not prove the conduct by a preponderance of the

evidence. We affirm.
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Dukes was charged in two counts of a 59-count indictment along with 30 other

individuals with conspiracy to distribute cocaine and cocaine base and with use of a

communication facility to facilitate a drug transaction. On December 12, 2008, Dukes

pleaded guilty to the latter count and the government dismissed the conspiracy charge

pursuant to a plea agreement. At sentencing, the district court found Dukes had a

criminal history category of VI and an offense level of 21, resulting in a Guidelines

range of 77 to 96 months. The court also concluded there was a 48-month statutory

maximum. The government made a brief statement at the hearing, but entered no

evidence and called no witnesses. The court stated the sentence under the charge for

use of a communication facility was much less than Dukes would have received under

the conspiracy charge, and Dukes was getting a "huge break" from the government.

The court then sentenced Dukes to 48 months of incarceration and one year of

supervised release.

We find no plain error in the district court's sentence of 48 months'

incarceration. United States v. Hill, 552 F.3d 686, 690 (8th Cir. 2009) (setting forth

the standard of review). As an initial matter, "our circuit has held numerous times

'that unless a defendant objects to a specific factual allegation contained in the

[presentence report (PSR)], the court may accept that fact as true for sentencing

purposes.'" United States v. Arrieta-Buendia, 372 F.3d 953, 955 (8th Cir. 2004)

(quoting United States v. Moser, 168 F.3d 1130, 1132 (8th Cir. 1999)). In this case,

multiple paragraphs in the PSR detailed Dukes's involvement in distributing cocaine

hydrochloride, (PSR ¶¶ 6, 9, 10, 12), which Dukes failed to object to at sentencing.

As a result of his failure to object, Dukes admitted the facts contained in the PSR and

the district court was entitled to rely on these facts. United States v. Schwalk, 412

F.3d 929, 933 (8th Cir. 2005). These facts demonstrate a factual basis for a

conspiracy charge against Dukes, which carried a statutory maximum penalty of at

least twenty years' imprisonment. 21 U.S.C. § 841(b)(1)(C). The record thus

supported the district court's conclusions that Dukes received a "huge break" under the

plea agreement, because his sentence on the communication facility was "half of what
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[he] would have gotten under the guidelines" for the conspiracy count. S. Tr. 11; see

PSR ¶ 63. 

In addition, any error resulting from the district court's consideration of the

dismissed conspiracy count did not rise to the level of plain error because it did not

affect Dukes's substantial rights. United States v. Molnar, 590 F.3d 912, 915 (8th Cir.

2010) ("To establish plain error, [the defendant] must prove that (1) there was error,

(2) the error was plain, and (3) the error affected his substantial rights."). "An error

affects a substantial right if the error was prejudicial. In the sentencing context, an

error is prejudicial only if the defendant proves a reasonable probability that he would

have received a lighter sentence but for the error." Id. (citations omitted). Moreover,

we exercise our discretion to correct such an error only if it "seriously affects the

fairness, integrity, or public reputation of judicial proceedings." Id. (citing United

States v. Olano, 507 U.S. 725, 732 (1993)).

In this case, the district court opted to sentence Dukes to the statutory maximum

of 48 months' incarceration, which was far less than the Guidelines range of 77-96

months. The district court noted it had carefully read the PSR and it acknowledged

Dukes's extensive criminal history, which placed him in a career offender status. The

district court further emphasized Dukes's criminal conduct did not cease even after

being indicted and pleading guilty in this matter. After noting these circumstances in

the record, the district court concluded, "so when I look at all of this, you're getting

a huge break from [the government] on this." (S. Tr. 11). Based on the record as a

whole, Dukes cannot show a reasonable probability he would have received a more

favorable sentence but for the district court's consideration of the dismissed

conspiracy charge. See United States v. Linderman, 587 F.3d 896, 899 (8th Cir. 2009)

(holding we will not conclude a defendant's substantial rights were affected unless the

defendant shows a reasonable probability he would have received a more favorable

sentence based on the record as a whole). The district court was clearly concerned

with his extensive criminal history and continuing criminal conduct after being
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indicted, and as a result, we cannot say there is a reasonable probability Dukes would

have received a more favorable sentence had the district court not considered the

dismissed conspiracy charge.

Accordingly, we affirm the judgment of the district court.

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