NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ______________

Nos. 22-1832 & 22-1833 ______________

UNITED STATES OF AMERICA

v.

KWAME T. EDDINGS, Appellant ______________

On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Nos. 2-16-cr-00004-009; 2-21-cr-00141-001) District Judge: Honorable Christy Criswell Wiegand ______________

Submitted Under Third Circuit L.A.R. 34.1(a) April 19, 2023 ______________

Before: HARDIMAN, PORTER, and FISHER, Circuit Judges

(Filed: April 24, 2023)

______________

OPINION ∗

∗ This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. PORTER, Circuit Judge.

Kwame Eddings challenges his sentence and the denials of several pretrial

motions. Finding no error by the District Court, we will affirm.

I.

Kwame Eddings was on federal supervised release. An informant advised state

police officers that Eddings was dealing drugs out of his house. The state police obtained

and executed a warrant to search the home. They found powder cocaine, crack cocaine,

and a mixture of heroin and fentanyl. They arrested Eddings and turned him over to the

federal Drug Enforcement Agency.

A grand jury returned a one-count indictment charging Eddings with unlawful

possession with the intent to distribute a substance containing crack cocaine and a

substance containing heroin. Six months later, the government filed a one-count

superseding indictment charging unlawful possession with the intent to distribute a

substance containing crack cocaine, a substance containing cocaine, and a substance

containing heroin and fentanyl.

Eddings filed several pretrial motions challenging the legality of the search, and

the District Court denied them all. Having lost his defenses, Eddings decided to plead

guilty without a plea agreement. During the change-of-plea hearing, Eddings argued that

the superseding indictment untimely added as a basis for conviction his unlawful

possession of cocaine. The government agreed. But it explained that a guilty plea on any

of the substances would suffice and noted that “[c]ertainly, the powder cocaine would be

relevant conduct for the purpose of the offense level.” App. 186. The government, 2 Eddings, and his attorney agreed that a stipulation was sufficient and that amending the

indictment was unnecessary.

The District Court sentenced Eddings to 57 months’ imprisonment for unlawful

possession with intent to distribute crack cocaine and a substance containing heroin and

fentanyl—the bottom of the Guidelines range. It also sentenced Eddings to the statutory

maximum, 24 months’ imprisonment to run consecutively, for violating his supervised

release.

II.

The District Court had jurisdiction under

because Eddings was

charged with violating conditions of federal supervision by committing a new federal

offense. We exercise jurisdiction under

.

III.

As a threshold matter, Eddings, by pleading guilty unconditionally, has lost the

opportunity to challenge some of the issues he presents on appeal. A claim that is not

“constitutionally relevant to the defendant’s conviction” does not survive an

unconditional guilty plea. United States v. Porter,

(3d Cir. 2019).

Eddings’s guilty plea broke “the chain of events which ha[d] preceded it in the criminal

process.” Tollett v. Henderson,

(1973). His conviction is founded on

his guilty plea, not evidence unconstitutionally collected and submitted to a grand jury.

For this reason, he is barred from presenting those arguments. 1

1 After reviewing Eddings’s arguments, we conclude that they also fail on the merits. 3 Eddings also asks the Court to consider arguments made in a pro se letter to the

District Court. Incorporating by reference arguments made in the District Court does not

satisfy the rules of appellate procedure, so we will not consider those arguments here.

Norman v. Elkin,

(3d Cir. 2017) (citing Fed. R. App. P. 28(a)(8)).

Eddings is not barred from challenging his sentence, so we will consider his

arguments about the District Court’s Guidelines calculation and its consideration of the

(a) factors.

A.

Eddings contends the District Court erred when calculating his Guidelines range.

We review the interpretation and construction of the Guidelines de novo. United States v.

Kulick,

(3d Cir. 2010). The District Court included the powder cocaine

as relevant conduct when calculating the total converted drug weight and, in turn,

determining a Guidelines range of 57 to 71 months’ imprisonment. Without the powder

cocaine, Eddings argues, his Guidelines range would be 46 to 57 months. Eddings

believes the powder cocaine should not be included in the calculations because the charge

for possessing powder cocaine “was dismissed/withdrawn as being time-barred.”

Appellant’s Br. 17.

The weight of authority is against Eddings. A sentencing court “may consider,

without limitation, any information concerning the . . . conduct of the defendant, unless

otherwise prohibited by law.” U.S.S.G. § 1B1.4 (citing

). That

discretion extends to conduct underlying an acquitted charge, conduct outside the statute

of limitations, conduct underlying dismissed counts, and uncharged conduct. United

4 States v. Watts,

(1997) (per curiam) (acquitted conduct); United States

v. Stephens,

(3d Cir. 1999) (statute of limitations); United States v.

Payano,

, 197–98 (3d Cir. 2019) (dismissed counts and uncharged conduct).

Eddings does not identify any law prohibiting the consideration of conduct that was

charged but procedurally defaulted.

The government disputes whether it committed a procedural error by failing to

charge powder cocaine in the original indictment, but we need not address that dispute.

Even if the government committed the error Eddings alleges, the error would only limit

its ability to convict Eddings for possessing powder cocaine; it would not require the

District Court to turn a blind eye to the powder cocaine at sentencing. The District Court

did not err when it considered the powder cocaine as relevant conduct when calculating

Eddings’s sentence.

B.

Eddings argues that the District Court did not properly weigh the § 3553(a)

factors. We review the substantive reasonableness of a sentence for abuse of discretion.

Kulick,

. Eddings does not clarify whether he is appealing the sentence for

unlawful possession with intent to distribute controlled substances or the sentence for

violating his supervised release. The District Court did not err in either sentence.

For the unlawful possession, the District Court sentenced Eddings at the bottom of

his Guidelines range, and we elect to presume that sentence was reasonable. Gall v.

United States,

(2007) (“If the sentence is within the Guidelines range, the

appellate court may, but is not required to, apply a presumption of reasonableness.”).

5 Eddings argues that the District Court did not give rational and meaningful

consideration to the sentencing factors. He points to the District Court’s denial of a

downward variance as proof that the District Court did not consider all of his arguments.

Contrary to Eddings’s assertion that the District Court sentenced him without

weighing the § 3553(a) factors, the District Court explained “that the sentence . . .

imposed represents the court’s considered judgment as to the appropriate sentence given

all of the facts and circumstances of this particular case,” including “defense counsel’s

remaining arguments regarding the 3553 factors.” App. 266–68. The District Court heard

and considered Eddings’s arguments about the crack-powder disparity and conditions of

incarceration during COVID-19 and “accounted for [those issues] by imposing a sentence

at the low end of the guidelines range.” App. 268. After reviewing the sentencing

transcript, we find that the District Court did not abuse its discretion in imposing a

bottom-of-the-range sentence of 57 months’ imprisonment.

Nor did the District Court err when it imposed a 24-month sentence of

imprisonment for Eddings’s violation of his conditions of supervised release. The District

Court calculated a Guidelines range of 33 to 41 months’ imprisonment and correctly set

that range aside because it exceeded the statutory maximum of 24 months. App. 273.

Eddings provides the list of § 3553(a) factors that courts must consider. That list matches

the factors identified by the District Court during the sentencing hearing. Eddings does

not identify which factors the District Court did not consider, and we do not see any

defect on review.

6 IV.

For these reasons, we will affirm the judgment of the District Court.

7