United States v. Mark Berger , 697 F. App'x 193 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4572
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARK ANDREW BERGER,
Defendant - Appellant.
Appeal from the United States District Court for the Western District of Virginia, at
Lynchburg. Norman K. Moon, Senior District Judge. (6:15-cr-00002-NKM-2)
Submitted: August 31, 2017 Decided: September 12, 2017
Before WILKINSON, KEENAN, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Paul G. Beers, GLENN, FELDMANN, DARBY & GOODLATTE, Roanoke, Virginia,
for Appellant. Rick A. Mountcastle, Acting United States Attorney, Jean B. Hudson,
Assistant United States Attorney, John R. Lystash, Third Year Law Intern,
Charlottesville, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Mark Andrew Berger was found guilty of conspiracy to possess with intent to
distribute 5 kilograms or more of cocaine and 280 grams or more of cocaine base, in
violation of 21 U.S.C. §§ 841(b)(1)(A), 846 (2012). He was sentenced to 270 months’
imprisonment. On appeal, Berger argues that the district court erred in holding him
responsible, as relevant conduct under U.S. Sentencing Guidelines Manual § 1B1.3(a)(1)
(2015), for the drug amounts distributed by three of his nephews who were part of the
conspiracy. We affirm.
We review a sentence for reasonableness, applying a deferential abuse of
discretion standard, Gall v. United States, 552 U.S. 38, 41 (2007), and we review “the
district court’s calculation of the quantity of drugs attributable to a defendant for
sentencing purposes for clear error,” United States v. Crawford, 734 F.3d 339, 342 (4th
Cir. 2013) (internal quotation marks omitted). “Clear error is demonstrated when the
reviewing court, considering all of the evidence, is left with the definite and firm
conviction that a mistake has been committed.” United States v. Foster, 824 F.3d 84, 90
(4th Cir. 2016) (ellipsis and internal quotation marks omitted). “The government must
prove by a preponderance of the evidence the quantity of drugs for which a defendant is
responsible.” United States v. McGee, 736 F.3d 263, 271 (4th Cir. 2013).
“Under the Guidelines, the drug quantities that may be attributed to the defendant
include the quantities associated with the defendant’s offense of conviction and any
relevant conduct.” United States v. Flores-Alvarado, 779 F.3d 250, 255 (4th Cir. 2015).
“Relevant conduct in conspiracy cases includes all reasonably foreseeable acts and
2
omissions of others in furtherance of the jointly undertaken criminal activity.” Id. (citing
USSG § 1B1.3(a)(1)(B)) (internal quotation marks omitted).
“[I]n order to attribute to a defendant for sentencing purposes the acts of others in
jointly-undertaken criminal activity, those acts must have been within the scope of the
defendant’s agreement and must have been reasonably foreseeable to the defendant.” Id.
(emphasis and internal quotation marks omitted). Sentencing courts are required “to
make particularized findings with respect to both the scope of the defendant’s agreement
and the foreseeability of the conduct at issue.” Id. at 256 (emphasis, brackets, and
internal quotation marks omitted).
In Berger’s presentence report the probation officer did find Berger responsible for
the drug amounts distributed by his three nephews. At sentencing, however, the district
court relied only on the drug distribution of Berger’s nephew Justin Berger (“Justin”) to
determine Berger’s relevant conduct for purposes of drug weight. The district court
specifically referenced Justin’s uncontroverted trial testimony for its finding that Berger
should be held responsible for Justin’s distribution of over 58 kilograms of cocaine base;
Justin testified that he frequently converted cocaine into crack at Berger’s residence over
a period in excess of three years and that Berger was compensated for the use of his
residence in cocaine and cash. The district court found at sentencing that Berger was
aware of Justin’s activities and that this conduct was within the scope of the conspiracy.
Thus, we find no clear error in the district court’s drug weight finding, Crawford, 734
F.3d at 342, and conclude that the Government sufficiently proved the drug quantity
attributable to Berger by a preponderance of the evidence. McGee, 736 F.3d at 231.
3
Accordingly, we affirm the judgment below. 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
4