United States v. Wendell A. Jackson ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 99-4382
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
WENDELL ANTHONY JACKSON, a/k/a Wendell
Jackson,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Richard L. Voorhees,
District Judge. (CR-97-184)
Submitted: November 30, 1999 Decided: December 10, 1999
Before MICHAEL, MOTZ, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Randolph Marshall Lee, Charlotte, North Carolina, for Appellant.
Mark T. Calloway, United States Attorney, Gretchen C.F. Shappert,
Assistant United States Attorney, Charlotte, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Wendell Anthony Jackson appeals the 262-month sentence he
received after his guilty plea to conspiracy to possess with intent
to distribute and distribute cocaine and crack, 21 U.S.C. § 846(1994). He contends that the district court erred in accepting
hearsay evidence presented by the government at sentencing
concerning both the amount of drugs attributable to him and an
enhancement for possession of a firearm during the offense, see
U.S. Sentencing Guidelines Manual § 2D1.1 (1998), despite his own
sworn testimony contradicting the government's evidence. He also
contends that the weapon enhancement was not supported by any
evidence that he carried a weapon during drug transactions. We
affirm.
In response to Jackson's objections to the presentence report,
the government presented testimony from a federal agent who
summarized statements taken from co-conspirators charged in an
earlier indictment. Jackson testified that he had been involved in
the conspiracy, but had not possessed a firearm and had sold much
smaller amounts than the government alleged. Under cross-
examination, Jackson acknowledged that he falsely told the
probation officer that he never used drugs and that he had been
charged with possession of three ounces of cocaine in New Jersey
eight months after the date he said he withdrew from the
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conspiracy.* The district court credited the government's evidence
over Jackson's testimony.
We find no error. The government has the burden of proving
the amount of drugs attributable to a defendant by a preponderance
of the evidence. See United States v. Cook, 76 F.3d 596, 604 (4th
Cir. 1996). It may meet its burden in a variety of ways, including
the presentation of evidence at sentencing. See United States v.
Gilliam, 987 F.2d 1009, 1013 (4th Cir. 1993). The district court
may consider hearsay evidence that has sufficient indicia of
reliability to support its probable accuracy. See USSG § 6A1.3,
p.s. Jackson contradicted the government's evidence, but gave the
court no other reason to suspect the reliability of the
government's information. The district court did not find
Jackson's testimony credible, and such a credibility determination
is within the discretion of the fact-finder, not the appeals court.
See United States v. Saunders, 886 F.2d 56, 60 (4th Cir. 1989).
The same analysis applies with respect to the firearm
enhancement. Moreover, the government was not required, as Jackson
contends, to link the 9 mm pistol that co-conspirators saw him
carry directly to the drugs. See United States v. Harris, 128 F.3d
*
Jackson, his brother, and another man were stopped in
Jackson's girlfriend's car in Bergen County, New Jersey. Three
ounces of cocaine and a small amount of marijuana were found in the
car. Jackson was acquitted of the drug charge, but his brother was
convicted.
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850, 852 (4th Cir. 1997); USSG § 2D1.1, comment. (n.3). Therefore,
the enhancement was not clearly erroneous.
For the reasons discussed, we find that the district court did
not err in crediting the government's evidence rather than
Jackson's and accepting the recommendations in the presentence
report. We therefore affirm the sentence. 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
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