Repealed-State-Law Convictions Still Count for Federal Criminal History and Pre–Amendment Acquitted-Conduct Sentencing Remains Valid: United States v. Adkins

Introduction

This commentary examines an unpublished Fourth Circuit decision affirming the conviction and sentence of Orlando Roosevelt Adkins, the operator of “Elite Customs,” an automotive shop in Hampton, Virginia, that served as a drug-trafficking hub. After a multi-year investigation, a jury convicted Adkins of conspiring to distribute fentanyl and marijuana (and acquitted him as to heroin and cocaine), and he separately pled guilty to maintaining a drug-involved premises, distributing marijuana, and using a communication facility in furtherance of drug trafficking. The district court imposed a below-Guidelines sentence of 180 months (advisory range: 262–327 months).

On appeal, Adkins mounted two principal challenges. First, he argued that the evidence was insufficient to support his conspiracy conviction as to fentanyl and marijuana. Second, he attacked multiple aspects of his sentence, including the district court’s reliance on acquitted conduct, denial of mitigating role and acceptance-of-responsibility reductions, inclusion of Virginia “habitual offender” driving convictions despite repeal of the underlying statute, and the substantive reasonableness of his sentence (including alleged disparity with a co-defendant).

The Fourth Circuit affirmed across the board. The court’s opinion is notable for (1) reaffirming, in the pre–Amendment 826 landscape, that acquitted conduct could be considered at sentencing if proven by a preponderance of the evidence; and (2) clarifying that convictions under a state statute later repealed still count toward a defendant’s federal criminal history score under U.S.S.G. § 4A1.2. Although unpublished and non-precedential within the Circuit, the decision provides practical guidance on evidentiary sufficiency in drug conspiracies (including buyer–seller disputes), and on navigating critical sentencing issues during the ongoing transition induced by Guideline Amendment 826 (effective Nov. 1, 2024).

Summary of the Opinion

• Conviction affirmed: Sufficient evidence supported the jury’s verdict that Adkins conspired to distribute fentanyl and marijuana. Intercepted calls, cooperating witness testimony, and Adkins’s own admissions (via stipulations tied to his guilty pleas) allowed a rational jury to find an agreement, knowledge, and voluntary participation as to both substances.
• Sentence affirmed: The district court did not commit procedural error by:
  • considering acquitted conduct (heroin and cocaine) proven by a preponderance of the evidence under then-controlling law;
  • rejecting a mitigating role reduction given Adkins’s central leadership of an “empire” based at Elite Customs;
  • denying an acceptance-of-responsibility reduction where Adkins pled to several counts but took the overarching drug-conspiracy charge to trial; and
  • including criminal history points for Virginia “habitual offender” convictions notwithstanding the subsequent repeal of the statute.
• Substantive reasonableness: The below-Guidelines sentence was presumptively reasonable; Adkins failed to show an unwarranted national disparity under § 3553(a)(6) or that the sentence was greater than necessary.

Analysis

Precedents Cited and Their Influence

• Standards of review and sufficiency:
  • United States v. Haas, 986 F.3d 467 (4th Cir. 2021): facts viewed in the light most favorable to the government.
  • United States v. Burfoot, 899 F.3d 326 (4th Cir. 2018): de novo review of Rule 29 denials; verdict sustained if a reasonable jury could find guilt beyond a reasonable doubt.
  • United States v. Green, 599 F.3d 360 (4th Cir. 2010): elements of § 846 drug conspiracy—agreement, knowledge, and knowing/voluntary participation.
  • United States v. Tillmon, 954 F.3d 628 (4th Cir. 2019): conspiracies can be inferred from a “development and collocation of circumstances.”
  • United States v. Howard, 773 F.3d 519 (4th Cir. 2014); United States v. Mallory, 40 F.4th 166 (4th Cir. 2022); United States v. Reid, 523 F.3d 310 (4th Cir. 2008): the buyer–seller doctrine—mere sales do not equal conspiracy, but repeat transactions, large quantities, and additional agreements can elevate to conspiratorial conduct.
• Sentencing standards and Guideline law:
  • Gall v. United States, 552 U.S. 38 (2007): procedural reasonableness (including proper Guidelines calculation) and substantive reasonableness standards.
  • United States v. Cox, 744 F.3d 305 (4th Cir. 2014): factual findings reviewed for clear error; legal conclusions de novo.
  • United States v. Elboghdady, 117 F.4th 224 (4th Cir. 2024): abuse-of-discretion review for sentencing reasonableness.
  • United States v. Medley, 34 F.4th 326 (4th Cir. 2022); United States v. Watts, 519 U.S. 148 (1997): at the time of sentencing in this case, courts could consider acquitted conduct if proven by a preponderance. The panel notes Guideline Amendment 826 now excludes acquitted conduct from “relevant conduct,” but it is not retroactive. See U.S.S.G. app. C, amend. 826 (Supp. 2024); § 1B1.11(a).
  • United States v. Pratt, 239 F.3d 640 (4th Cir. 2001); United States v. Akinkoye, 185 F.3d 192 (4th Cir. 1999): mitigating role reductions place the burden on the defendant; the inquiry focuses on whether the defendant’s conduct was material or essential to the offense.
  • United States v. Lawson, 128 F.4th 243 (4th Cir. 2025): clear-error review for role determinations; co-defendant disparity analysis under § 3553(a)(6) centers on nationwide, not co-defendant-to-co-defendant comparisons.
  • United States v. Jeffery, 631 F.3d 669 (4th Cir. 2011); United States v. Carver, 916 F.3d 398 (4th Cir. 2019): acceptance-of-responsibility under § 3E1.1 often unavailable when a defendant goes to trial contesting factual guilt; pleading to some counts alone is insufficient.
  • United States v. Arbaugh, 951 F.3d 167 (4th Cir. 2020); United States v. Gutierrez, 963 F.3d 320 (4th Cir. 2020): substantive reasonableness assessed under the totality of circumstances; within or below-Guidelines sentences are presumptively reasonable.
• State-law context on repealed offenses:
  • Va. Code § 46.2-357 (repealed 2021); Lilly v. Commonwealth, 647 S.E.2d 517 (Va. Ct. App. 2007): background on Virginia’s “habitual offender” driving offense, later repealed. The panel emphasizes that repeal does not erase prior adjudications of guilt for federal criminal history scoring under § 4A1.2.

Legal Reasoning

1) Sufficiency of the Evidence: Fentanyl and Marijuana Conspiracies

The court upheld the jury’s verdict under the deferential sufficiency standard. Regarding fentanyl, the government did not need to show that Adkins personally handled every sale. Instead, the evidence showed a distribution model: Otey sourced drugs for Adkins; Adkins handed them to Jenkins to sell; an intercepted call captured Otey warning that heroin was laced with fentanyl, and Adkins directed Jenkins to “cut” it before distribution—confirming his knowledge of the fentanyl content and active role within a three-person agreement. From these coordinated steps, a rational jury could infer the conspiracy’s existence and Adkins’s knowing participation.

On marijuana, Adkins leaned on the buyer–seller doctrine, characterizing Rowland as merely his supplier. The panel rejected this framing. Adkins admitted in a signed stipulation (read to the jury) that he made Elite Customs available for marijuana distribution and collaborated with Rowland for significant sales, including transactions tied to third-party buyers in October 2020 and March 2021. Such admissions, repeated dealings, and concerted activity went beyond a “bare” buy–sell relationship and supported the conspiracy finding under Howard, Mallory, and Reid.

2) Procedural Reasonableness

a) Acquitted Conduct and Pre–2020 Conduct

At the time of sentencing, Fourth Circuit law permitted district courts to consider uncharged or acquitted conduct proven by a preponderance of the evidence. The panel acknowledged Guideline Amendment 826’s new ban on acquitted conduct as “relevant conduct,” but correctly noted that the amendment is not retroactive, so it did not govern Adkins’s case. On this record, testimony from Otey and Chambers (including Chambers’s recounting of Adkins producing a “kilo of cocaine” and fronting him multiple ounces) sufficed to support the district court’s preponderance findings regarding heroin and cocaine.

The court also rejected Adkins’s attempt to exclude pre-2020 conduct. Otey testified that he and Adkins had been dealing since 2016 or 2017, and Adkins admitted maintaining Elite Customs as a distribution hub since early 2016. That evidence supported inclusion of earlier conduct as relevant to the offense.

b) Mitigating Role (U.S.S.G. § 3B1.2)

The record defeated any “minimal participant” claim. Intercepted calls placed Adkins “at the top” of what he called his “empire,” and Elite Customs functioned as the operational base for meetings, exchanges, and proceeds distribution. Against that backdrop, the district court did not clearly err in finding his role material and essential, precluding a § 3B1.2 reduction.

c) Acceptance of Responsibility (U.S.S.G. § 3E1.1)

Although Adkins pled guilty to several counts, he contested factual guilt on the overarching conspiracy count that was “at the heart of this case.” Under Jeffery and Carver, partial pleas do not automatically establish acceptance; the key is whether the defendant clearly demonstrated recognition and affirmative acceptance of responsibility for all relevant conduct. Because Adkins forced the government to prove the core conspiracy at trial, denying the reduction was not clear error.

d) Criminal History: Repealed State Statute Convictions

Adkins argued that criminal history points arising from Virginia “habitual offender” convictions (under a statute repealed in 2021) were “oppressive” and “fundamentally unfair.” The panel rejected this as a matter of Guideline text and structure. Section 4A1.2 defines a “prior sentence” as one imposed after an adjudication of guilt; the carve-outs in § 4A1.2(d)–(l) do not exclude convictions merely because the underlying law was later repealed. Absent vacatur or some enumerated exclusion, prior state convictions remain valid for federal scoring. The panel also emphasized that Adkins’s history included multiple non-driving offenses, and the district court reasonably found it showed a “wanton disrespect for the law,” undermining any argument that his score substantially over-represented his criminality.

3) Substantive Reasonableness

A properly calculated, below-Guidelines sentence is presumptively reasonable. Adkins contested his sentence as greater than necessary and disparate compared to a codefendant (Rowland). The panel reiterated that § 3553(a)(6) focuses on eliminating unwarranted national disparities, not ensuring parity among co-defendants. Adkins offered no nationwide comparator evidence, and Rowland was not similarly situated: he pled to a single offense with a Category II history and received a within-range sentence; by contrast, Adkins had more counts, a far higher criminal history category, and nonetheless received a downward variance. The district court’s rationale—frequency of unlawful conduct, sophistication and secrecy of the “empire,” need for just punishment and deterrence, tempered by a partial plea and nonviolent history—comfortably supported the 180-month sentence.

Impact and Practical Significance

• Acquitted conduct during the Amendment 826 transition: The panel confirms that for sentencings governed by pre–Nov. 1, 2024 law, considering acquitted conduct remains permissible if proven by a preponderance. Defense counsel must frame any challenge around the applicable Guideline manual under § 1B1.11. Where possible, litigants should preserve and press for application of the post–Nov. 1, 2024 manual in cases sentenced after that date; conversely, for earlier sentencings or re-sentencings without retroactive effect, the old rule controls.
• Repealed-law convictions count unless vacated: The opinion squarely rejects the notion that repeal erases prior convictions for § 4A1.2 scoring. The practical lesson is that defendants seeking relief must pursue vacatur or other post-conviction remedies in state court; abstract fairness arguments about repeal will not carry the day in federal sentencing.
• Buyer–seller limitations: Adkins confirms that stipulations, repeated sales, coordination around third-party buyers, and use of a premises as a distribution hub move conduct beyond a mere buy–sell relationship. Defense strategies should scrutinize the record for the absence of these “plus factors,” while the government will emphasize patterns and any shared objectives.
• Acceptance-of-responsibility after partial pleas: Pleading to some counts does not guarantee a § 3E1.1 reduction if the defendant contests the core factual basis of the case. Counsel should weigh the tradeoffs of taking a lead conspiracy count to trial and, if proceeding to trial, structure the defense to preserve “non-factual-guilt” issues where a reduction might still be argued.
• Mitigating role and leadership cues: Admissions of ownership or control of the premises, intercepted statements claiming to be “at the top,” and coordination of supply and sales will defeat § 3B1.2 claims. Where appropriate, defendants should build a record of limited authority, replaceability, and lack of decision-making power.
• Codefendant disparities: The opinion reinforces that § 3553(a)(6) is primarily concerned with national uniformity. Disparity arguments require evidence that the case falls outside national norms for similar conduct and criminal history—not only comparisons within a single conspiracy.

Complex Concepts Simplified

• Acquitted conduct: Facts underlying charges of which the defendant was found not guilty. Before Nov. 1, 2024, judges could rely on such conduct at sentencing if proven by a preponderance of the evidence. Amendment 826 now generally forbids treating acquitted conduct as “relevant conduct,” but the change is not retroactive.
• Buyer–seller doctrine: A simple sale, even repeated, does not automatically prove a conspiracy. Prosecutors typically need “plus factors” like large quantities, ongoing collaboration, fronting, shared profits, or coordinated sales to third parties to show a conspiratorial agreement.
• Mitigating role (U.S.S.G. § 3B1.2): A reduction available to minimal or minor participants. The central question is whether the defendant’s actions were essential to the offense’s success. Defendants bear the burden to prove entitlement.
• Acceptance of responsibility (U.S.S.G. § 3E1.1): A reduction for clearly recognizing and affirmatively accepting responsibility. Going to trial to contest factual guilt generally weighs against the reduction. Partial pleas do not automatically qualify.
• Criminal history points (U.S.S.G. § 4A1.2): Points assigned for prior sentences after adjudications of guilt. Repeal of the underlying statute does not erase the conviction for federal scoring, unless an enumerated exclusion applies or the conviction is vacated.
• Procedural vs. substantive reasonableness: Procedural reasonableness concerns how the sentence was calculated and explained (e.g., Guideline errors). Substantive reasonableness asks whether, considering all circumstances, the sentence is reasonable under the § 3553(a) factors.
• Rule 29 motion: A motion for judgment of acquittal arguing the evidence is insufficient for conviction as a matter of law. Appellate courts view the evidence in the light most favorable to the government.
• Variance: A sentence outside the advisory Guideline range based on statutory § 3553(a) factors. Here, the court varied downward from 262–327 months to 180 months.

Conclusion

United States v. Adkins is an instructive reaffirmation of settled principles applied to a modern drug-conspiracy prosecution. On the merits, the Fourth Circuit found ample evidence of agreement, knowledge, and participation in both the fentanyl-laced heroin distribution scheme and the marijuana conspiracy—especially given Adkins’s operational control of Elite Customs and his own admissions. On sentencing, the panel confirmed that, under the applicable Guideline regime, (i) acquitted conduct could be used if proven by a preponderance; (ii) Adkins’s central role defeated any mitigating-role claim; (iii) contesting the core conspiracy count undermined acceptance-of-responsibility; (iv) prior convictions under a later-repealed state statute properly counted toward criminal history; and (v) a below-Guidelines sentence was substantively reasonable despite codefendant comparisons.

While unpublished and therefore non-binding, Adkins provides practical guidance during a period of transition in federal sentencing. It underscores that the repeal of a state statute does not erase prior convictions for federal purposes; that buyer–seller defenses must reckon with “plus factors”; that partial guilty pleas do not guarantee acceptance-of-responsibility; and that acquitted conduct remains relevant in pre–Amendment 826 sentencings. For practitioners, the case illustrates how evidentiary choices, plea strategy, and meticulous preservation of sentencing objections can materially shape outcomes in conspiracy prosecutions and their sentencing aftermath.