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United States v. Booker, 01-4577 (2002)

Court: Court of Appeals for the Fourth Circuit Number: 01-4577 Visitors: 34
Filed: Jun. 17, 2002
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, v. No. 01-4577 NICHOLAS DEVON BOOKER, a/k/a Pooh Bear, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee, v. No. 01-4650 LASHAWN L. LEE, a/k/a Cookie, Defendant-Appellant. Appeals from the United States District Court for the Southern District of West Virginia, at Beckley. Charles H. Haden II, Chief District Judge. (CR-01-4) Submitted: May 30, 2002 Decided:
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                         UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.
                                               No. 01-4577
NICHOLAS DEVON BOOKER, a/k/a
Pooh Bear,
             Defendant-Appellant.
                                       
UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                            No. 01-4650
LASHAWN L. LEE, a/k/a Cookie,
             Defendant-Appellant.
                                       
           Appeals from the United States District Court
      for the Southern District of West Virginia, at Beckley.
             Charles H. Haden II, Chief District Judge.
                            (CR-01-4)

                      Submitted: May 30, 2002

                      Decided: June 17, 2002

    Before WIDENER, WILKINS, and MOTZ, Circuit Judges.



Affirmed by unpublished per curiam opinion.
2                      UNITED STATES v. BOOKER
                              COUNSEL

Sol Z. Rosen, Washington, D.C.; S. Mason Preston, PRESTON &
WEESE, L.C., Lewisburg, West Virginia, for Appellants. Kasey War-
ner, United States Attorney, Samuel D. Marsh, Assistant United
States Attorney, Charleston, West Virginia, for Appellee.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                              OPINION

PER CURIAM:

   Nicholas Devon Booker was sentenced to thirty-three months pur-
suant to his guilty plea to distribution of marijuana. LaShawn L. Lee
received an eighty-four month sentence pursuant to his guilty plea to
distribution of cocaine base. On appeal, Booker and Lee maintain that
the district court erred in determining the quantity of controlled sub-
stances attributable to them, respectively, as relevant conduct. Lee
further argues that the district court erred in imposing a two-level sen-
tence enhancement for possession of a dangerous weapon under
United States Sentencing Guidelines Manual § 2D1.1(b)(1) (2000).
These appeals have been consolidated. Finding no reversible error, we
affirm.

   The district court’s determination of the drug quantity attributable
to a defendant is a factual finding reviewed for clear error. United
States v. Randall, 
171 F.3d 195
, 210 (4th Cir. 1999). In determining
drug quantity, a district court must consider whether the Government
has established drug quantity by a preponderance of the evidence.
United States v. Cook, 
76 F.3d 596
, 604 (4th Cir. 1996); see also
United States v. Obi, 
239 F.3d 662
, 667 (4th Cir.) (upholding a dis-
trict court’s determination of drug quantity by a preponderance of the
evidence where no violation occurred under Apprendi v. New Jersey,
530 U.S. 466
(2000)), cert. denied, 
122 S. Ct. 86
(2001).
                       UNITED STATES v. BOOKER                        3
   Under USSG § 1B1.3(a)(2), drug quantities not specified in the
count of conviction are considered as relevant conduct for sentencing
when they are part of the same course of conduct, or common plan
or scheme. USSG § 1B1.3(a)(2); United States v. Ellis, 
975 F.2d 1061
, 1067 (4th Cir. 1992). In calculating drug amounts, the court
may consider any relevant information, provided that the information
has sufficient indicia of reliability to support its probably accuracy.
United States v. Uwaeme, 
975 F.2d 1016
, 1021 (4th Cir. 1992). Even
hearsay alone can provide sufficiently reliable evidence of drug quan-
tity. 
Id. On appeal, Booker
maintains that the relevant conduct attributed to
him, aiding in the sale of cocaine base to an undercover agent, was
not established by a preponderance of the evidence. We disagree,
finding sufficient evidence to support the amount of drugs attributed
to him as relevant conduct. In challenging the district court’s determi-
nation of his relevant conduct, Lee argues that Shawn Meador’s testi-
mony was so obviously false and contradictory that it was incredible.
The record reflects, however, that the district court clearly considered
all credibility issues concerning Meador’s testimony. The fact that the
court ultimately found Meador credible regarding the July 2000 trans-
action was well within its discretion. The credibility of a witness is
a matter within the discretion of the fact finder and is generally not
subject to appellate review. United States v. Saunders, 
886 F.2d 56
,
60 (4th Cir. 1989).

   Lee next argues that the district court erred in not giving adequate
weight to the amounts estimated in the Government’s relevant con-
duct letter. As Lee recognizes, the Government’s letter was not bind-
ing on the district court. The court heard Meador’s testimony,
reasonably found a portion of his testimony credible, and attributed
an additional one-half ounce of crack cocaine to Lee. Finding Meador
credible, the district court was simply under no obligation to attach
conclusive weight to the relevant conduct letter.

   Last, Lee argues that the district court erred in assessing a two-
level enhancement for possession of a dangerous weapon during a
drug offense pursuant to USSG § 2D1.1(b)(1). The adjustment should
be applied if the weapon was present, unless it is clearly improbable
that the weapon was connected with the offense. USSG § 2D1.1,
4                    UNITED STATES v. BOOKER
comment. (n.3). The determination that a weapon enhancement is
warranted is a factual question subject to clearly erroneous review.
United States v. Apple, 
915 F.2d 899
, 914 (4th Cir. 1990). We have
reviewed the record and find no clear error in the imposition of the
two-level enhancement.

  Accordingly, we affirm Booker’s and Lee’s sentences. We dis-
pense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.

                                                        AFFIRMED

Source:  CourtListener

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