Filed: Oct. 04, 2006
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 05-4779 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus TROY LAMONT MURPHY, Defendant - Appellant. No. 05-4808 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus TIMOTHY LAFON MURPHY, a/k/a TJ, Defendant - Appellant. Appeals from the United States District Court for the Eastern District of North Carolina, at Raleigh. Louise W. Flanagan, Chief District Judge. (CR-04-241) Submitted: August 30, 2006 Decided: October 4,
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 05-4779 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus TROY LAMONT MURPHY, Defendant - Appellant. No. 05-4808 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus TIMOTHY LAFON MURPHY, a/k/a TJ, Defendant - Appellant. Appeals from the United States District Court for the Eastern District of North Carolina, at Raleigh. Louise W. Flanagan, Chief District Judge. (CR-04-241) Submitted: August 30, 2006 Decided: October 4, ..
More
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4779
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TROY LAMONT MURPHY,
Defendant - Appellant.
No. 05-4808
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TIMOTHY LAFON MURPHY, a/k/a TJ,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Louise W. Flanagan, Chief
District Judge. (CR-04-241)
Submitted: August 30, 2006 Decided: October 4, 2006
Before MICHAEL, MOTZ, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas K. Maher, WINSTON & MAHER, Chapel Hill, North Carolina;
James M. Ayers II, AYERS, HAIDT & TRABUCCO, P.A., New Bern, North
Carolina, for Appellants. Anne Margaret Hayes, Assistant United
States Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
- 2 -
PER CURIAM:
Timothy Lafon Murphy and his brother, Troy Lamont Murphy
were convicted by a jury of one count of conspiracy to distribute
and to possess with intent to distribute more than fifteen
kilograms of cocaine and more than 1.5 kilograms of crack cocaine,
in violation of 21 U.S.C. §§ 841(a)(1), 846 (2000). Troy was also
convicted of one count of distribution of crack cocaine, in
violation of 21 U.S.C. § 841(a)(1). On appeal, counsel have filed
an Anders1 brief, in which they state there are no meritorious
issues for appeal, but suggest that the district court erred in
enhancing Timothy’s offense level for his role in the offense and
for possession of a dangerous weapon, and erred in enhancing Troy’s
offense level for obstruction of justice by intimidating witnesses.
Timothy and Troy each filed a pro se supplemental brief. The
Government declined to file a brief. We affirm.
In determining the sentencing range for Timothy under the
Sentencing Guidelines,2 the probation officer attributed a total of
7848.85 grams of crack cocaine and 39,000 grams of powder cocaine,
which converted to a marijuana equivalency of 164,777 kilograms.
This quantity yielded a base offense level of thirty-eight pursuant
to USSG § 2D1.1(c)(1). The probation officer also recommended a
two-level enhancement pursuant to USSG § 2D1.1(b)(1) because
1
Anders v. California, 386 U.S. 738 (1967).
2
U.S. Sentencing Guidelines Manual (2004) (USSG).
- 3 -
Timothy possessed a dangerous weapon in connection with the
offense, and a four-level enhancement pursuant to USSG § 3B1.1(a)
because Timothy was an organizer or leader of an extensive criminal
enterprise that involved five or more participants. The total
offense level of forty-four was reduced to forty-three, the maximum
recognized in the Guidelines. Timothy’s prior criminal activity
resulted in a total of seventeen criminal history points, placing
him in criminal history category VI, which was also mandated by his
career offender status. The resulting sentencing range based on a
total offense level of forty-three and criminal history category VI
was life imprisonment. At sentencing, the district court overruled
Timothy’s objections to the enhancements and imposed a life
sentence.
In determining the sentencing range for Troy, the
probation officer attributed a total of 1991.1 grams of crack
cocaine and 627.575 grams of powder cocaine, which converted to a
marijuana equivalency of 39,947.515 kilograms. This quantity
yielded a base offense level of thirty-eight pursuant to USSG
§ 2D1.1(c)(1). The probation officer also recommended a two-level
enhancement pursuant to USSG § 3C1.1 because Troy intimidated
witnesses. Troy’s prior criminal activity resulted in a total of
nine criminal history points, placing him in criminal history
category IV. The resulting sentencing range based on a total
offense level of forty and criminal history category IV was 360
- 4 -
months to life imprisonment. The district court rejected Troy’s
objections and sentenced him to 360 months of imprisonment.
Counsel first suggests that the district court erred in
enhancing Timothy’s offense level for a leadership role in the
offense and for possession of a dangerous weapon. A district
court’s determination of the defendant’s role in the offense is
reviewed for clear error. United States v. Sayles, 296 F.3d 219,
224 (4th Cir. 2002). A four-level adjustment for role in the
offense is appropriate when “the defendant was an organizer or
leader of a criminal activity that involved five or more
participants or was otherwise extensive.” USSG § 3B1.1(a).
An enhancement for an aggravating role requires, at a
minimum, that “the defendant must have been the organizer, leader,
manager, or supervisor of one or more other participants.” USSG
§ 3B1.1, comment. (n.2); United States v. Harriott, 976 F.2d 198,
200 (4th Cir. 1992) (two-level enhancement appropriate where
defendant directed activities of one other person); United
States v. Kincaid,
964 F.2d 325, 329 (4th Cir. 1992) (same).
Factors distinguishing a leadership or organizational role from
lesser roles include exercise of decision making authority, the
nature of the participation in the offense, recruitment of
accomplices, the claimed right to a larger share of the proceeds,
the degree of participation in planning or organizing the offense,
the nature and scope of the illegal activity, and the degree of
- 5 -
control and authority exercised. USSG § 3B1.1, comment. (n.4). In
this case, the district court noted these factors and concluded
that the enhancement was justified by the evidence at trial. Our
review of the record convinces us that the district court’s
decision to impose the four-level enhancement was correct.
The Guidelines provide for a two-level increase in a
defendant's base offense level “[i]f a dangerous weapon (including
a firearm) was possessed.” USSG § 2D1.1(b)(1). Application Note
3 of the Commentary to § 2D1.1 states that “[t]he 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(b)(1), comment. (n.3). “In order to prove that a weapon
was present, the Government need show only that the weapon was
possessed during the relevant illegal drug activity.” United
States v. McAllister, 272 F.3d 228, 234 (4th Cir. 2001). The
district court imposed the enhancement based on testimony that
Timothy held a knife to the throat of a person he apparently
suspected of stealing a quantity of cocaine. We conclude that the
district court did not err in imposing this enhancement.
Counsel next asserts that the district court erred in
enhancing Troy’s offense level for obstruction of justice. We
review a district court’s determination that a defendant obstructed
justice for clear error. United States v. Hughes, 401 F.3d 540,
560 (4th Cir. 2005). The Sentencing Guidelines provide for a
- 6 -
two-level increase in a defendant’s offense level “[i]f (A) the
defendant willfully obstructed or impeded, or attempted to obstruct
or impede, the administration of justice during the course of the
investigation, prosecution, or sentencing of the instant offense of
conviction, and (B) the obstructive conduct related to (i) the
defendant’s offense of conviction and any relevant conduct.” USSG
§ 3C1.1.
“[T]hreatening, intimidating, or otherwise unlawfully
influencing a co-defendant, witness, or juror, directly or
indirectly, or attempting to do so” is specifically listed as an
example of conduct for which the enhancement is appropriate. USSG
§ 3C1.1, comment. (n.4(a)). “To apply the obstruction-of-justice
enhancement, the district court must find that a defendant
consciously act[ed] with the purpose of obstructing justice.”
United States v. Stewart, 256 F.3d 231, 253 (4th Cir. 2001)
(internal quotation marks and citation omitted). The district
court imposed the enhancement based on testimony that Troy
threatened a co-defendant and coerced him into signing a letter
exonerating Troy, and attempted to verbally intimidate other
witnesses. Our review of the record demonstrates that the facts
supporting the enhancement were sufficiently established.
In accordance with Anders, we have reviewed the record in
this case and have found no meritorious issues for appeal. We have
considered the arguments asserted in the pro se briefs submitted by
- 7 -
Timothy and Troy and find them to be without merit. We therefore
affirm the convictions and sentences. We deny Troy’s motion to
proceed pro se as moot. This court requires that counsel inform
their client, in writing, of the right to petition the Supreme
Court of the United States for further review. If the client
requests that a petition be filed, but counsel believes that such
a petition would be frivolous, then counsel may move in this court
for leave to withdraw from representation. Counsel’s motion must
state that a copy thereof was served on the client.
We dispense 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
- 8 -
