United States v. Marcus Burney ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4787
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARCUS TERRELL BURNEY,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Dever III,
Chief District Judge. (7:12-cr-00068-D-1)
Submitted: September 17, 2015 Decided: October 1, 2015
Before NIEMEYER, MOTZ, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
EJ Hurst II, Durham, North Carolina, for Appellant. Thomas G.
Walker, United States Attorney, Jennifer P. May-Parker, Yvonne
V. Watford-McKinney, Assistant United States Attorneys, Raleigh,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Marcus Terrell Burney appeals his 96-month sentence for
possession with intent to distribute cocaine base (crack),
cocaine, and a quantity of hydrocodone combination product, in
violation of 21 U.S.C. § 841(a)(1) (2012). On appeal, he raises
four issues, whether: (1) his right to due process was violated
by interviews and testimony obtained after a continuance motion
resulting in a prejudicial misjoinder of charges; (2) his
sentence was procedurally unreasonable because of drug weight
established by the testimony of a cooperating witness; (3) his
sentence was procedurally unreasonable because an outdated
conviction was used to enhance his criminal history; and (4) his
sentencing violated due process because his sentence was based
on acquitted and uncharged conduct found by a preponderance of
the evidence. For the reasons that follow, we affirm.
First, we normally review due process and misjoinder claims
de novo, see United States v. Shealey, 641 F.3d 627, 633 (4th
Cir. 2011) (providing review standard for due process claims);
see also United States v. Hawkins, 776 F.3d 200, 206 (4th Cir.
2015) (providing review standard for misjoinder claims);
however, Burney admits these claims are raised for the first
time on appeal, and we thus review them for plain error. United
States v. White, 405 F.3d 208, 215 (4th Cir. 2005) (providing
plain error review standard). Our review of the record and the
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parties’ arguments reveals no plain error by the district court.
Id.Next, Burney contests the drug weight attributed to him for
purposes of sentencing. More specifically, he alleges that the
cooperating witness’ testimony was insufficient to attribute 3.2
grams of crack to him and that the district court erred by using
11.7 grams of drug weight, due to packaging, rather than the
9.35 grams of the drugs alone. We review criminal sentences for
reasonableness under a deferential abuse-of-discretion standard.
Gall v. United States, 552 U.S. 38, 51 (2007); United States v.
Rivera–Santana, 668 F.3d 95, 100 (4th Cir. 2012). The first
step requires this court to ensure that the district court
committed no significant procedural error, such as failing to
calculate (or improperly calculating) the Sentencing Guidelines
range, treating the Guidelines as mandatory, failing to consider
the 18 U.S.C. § 3553(a) (2012) factors, selecting a sentence
based on clearly erroneous facts, or failing to adequately
explain the chosen sentence — including an explanation for any
deviation from the Guidelines range. Gall, 552 U.S. at 51;
United States v. Carter, 564 F.3d 325, 328-29 (4th Cir. 2009).
The second step is substantive reasonableness review, but
Burney alleges only procedural error on appeal — here, the
incorrect calculation of the quantity of drugs attributable to
him. We review this claim for clear error, United States v.
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Randall, 171 F.3d 195, 210 (4th Cir. 1999), and find none in the
district court’s finding of 3.2 grams of crack attributable to
Burney based on the cooperating witness’ testimony. (J.A. 237-
241). Moreover, Burney admits on appeal that whether the
district court incorrectly counted his drug packaging weight
would not alter his offense level and thus any error would be
harmless.
Third, Burney contends that the district court incorrectly
counted one of his prior sentences, which he asserts was
completed more than ten years before the instant offense
commenced, in violation of U.S. Sentencing Guidelines Manual §
4A1.2(e)(2) (2013). Burney concedes we review this issue only
for plain error, however, and we find none. White, 405 F.3d at
215.
Finally, Burney objects to the fact that he was sentenced
based on acquitted conduct. We have held, however, that courts
may “consider acquitted conduct in establishing drug amounts for
the purpose of sentencing, so long as the amounts are
established by a preponderance of the evidence.” United States
v. Perry, 560 F.3d 246, 258 (4th Cir. 2009); see also United
States v. Watts, 519 U.S. 148, 157 (1997) (holding that “a
jury’s verdict of acquittal does not prevent the sentencing
court from considering conduct underlying the acquitted charge,
so long as that conduct has been proved by a preponderance of
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the evidence”). The district court found the necessary facts
for Burney’s drug weight and other sentencing factors by a
preponderance of the evidence. Perry, 560 F.3d at 258. Thus,
this claim fails.
Accordingly, we affirm. We dispense with oral argument
because the facts and legal contentions are adequately presented
in the materials before this court and argument would not aid
the decisional process.
AFFIRMED
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