Filed: Jan. 25, 2010
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-5034 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. TENNYSON HARRIS, a/k/a Teddy, a/k/a Mark T, Defendant - Appellant. Appeal from the United States District Court for the District of Maryland, at Greenbelt. Peter J. Messitte, Senior District Judge. (8:00-cr-00253-PJM-3) Submitted: December 30, 2009 Decided: January 25, 2010 Before KING, GREGORY, and SHEDD, Circuit Judges. Affirmed by unpublished per curiam opinion. Sic
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-5034 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. TENNYSON HARRIS, a/k/a Teddy, a/k/a Mark T, Defendant - Appellant. Appeal from the United States District Court for the District of Maryland, at Greenbelt. Peter J. Messitte, Senior District Judge. (8:00-cr-00253-PJM-3) Submitted: December 30, 2009 Decided: January 25, 2010 Before KING, GREGORY, and SHEDD, Circuit Judges. Affirmed by unpublished per curiam opinion. Sici..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5034
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TENNYSON HARRIS, a/k/a Teddy, a/k/a Mark T,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Peter J. Messitte, Senior District
Judge. (8:00-cr-00253-PJM-3)
Submitted: December 30, 2009 Decided: January 25, 2010
Before KING, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Sicilia Chinn Englert, LAWLOR & ENGLERT, LLC, Greenbelt,
Maryland, for Appellant. Rod J. Rosenstein, United States
Attorney, Steven M. Dunne, Assistant United States Attorney,
Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Tennyson Harris appeals the sentence imposed by the
district court on remand from this court for resentencing
pursuant to United States v. Booker, 543 U.S. 220 (2005). A
jury convicted Harris of conspiracy to distribute and possess
with intent to distribute 1000 kilograms or more of marijuana,
in violation of 21 U.S.C. § 846 (2006). In this appeal, Harris
argues that the district court erred in determining that he was
responsible for over 3000 kilograms of marijuana, which resulted
in a base offense level of thirty-four pursuant to U.S.
Sentencing Guidelines Manual (“USSG”) § 2D1.1(c)(3) (2001).
Specifically, he asserts that the court’s method of averaging
the number of drug hauling trips performed by various truck
drivers and multiplying that figure by an assumed quantity of
marijuana hauled on each trip was not supported by the record.
This court reviews the district court’s calculation of
the quantity of drugs attributable to a defendant for sentencing
purposes for clear error. United States v. Randall, 171 F.3d
195, 210 (4th Cir. 1999). Clear error occurs when the court,
upon reviewing the record as a whole, is “‘left with the
definite and firm conviction that a mistake has been
committed.’” Easley v. Cromartie,
532 U.S. 234, 242 (2001)
(quoting United States v. United States Gypsum Co.,
333 U.S.
364, 395 (1948)). “If the defendant objects to a quantity
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recommended in a presentence report, the district court must
make an independent resolution of the factual issues raised by
the objection.” United States v. Williams, 152 F.3d 294, 300-01
(4th Cir. 1998). The Government must establish the quantity of
drugs attributable to a defendant by a preponderance of the
evidence and may do so through the introduction of relevant and
reliable evidence. United States v. Jones,
31 F.3d 1304, 1316
(4th Cir. 1994).
“Where there is no drug seizure or the amount seized
does not reflect the scale of the offense, the court shall
approximate the quantity of the controlled substance.” USSG
§ 2D1.1, comment. (n.12). “The district court is afforded broad
discretion as to what information to credit in making its
calculations.” United States v. Cook, 76 F.3d 596, 604 (4th
Cir. 1996) (internal quotation marks omitted). “Direct or
hearsay testimony of lay witnesses . . . can provide
sufficiently reliable evidence of quantity. Where witnesses’
estimates of drug amounts are uncertain, however, a district
court is well advised to sentence at the low end of the range to
which the witness testified.” United States v. Sampson,
140
F.3d 585, 592 (4th Cir. 1998) (internal citations omitted).
In arguing that the district court erred in
determining drug quantity, Harris relies principally on United
States v. Sepulveda, 15 F.3d 1161, 1198 (1st Cir. 1993), in
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which the district court relied on trial testimony that
addressed drug quantities in a general manner. The First
Circuit vacated the sentence, holding that “where uncertainty
reigns” about the amount of drugs involved in a conspiracy,
courts should “err on the side of caution.” Id. This court,
however, has rejected the holding in Sepulveda in clear
language: “we hold that a district court need not ‘err,’ on the
side of caution or otherwise; it must only determine that it was
more likely than not that the defendant was responsible for at
least the drug quantity attributed to him.” United States v.
Kiulin,
360 F.3d 456, 461 (4th Cir. 2004). Our review of the
record convinces us that the district court’s methodology was
proper and the drug quantity attributed to Harris by the
district court was supported by the evidence.
Accordingly, we affirm Harris’s sentence. We dispense
with oral argument because the facts and legal conclusions are
adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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