United States v. Daugherty ( 2000 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-4364
PHILLIP L. DAUGHERTY,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-4365
JAMIE TRESSA BUMPUS,
Defendant-Appellant.

Appeals from the United States District Court
for the Southern District of West Virginia, at Charleston.
John T. Copenhaver, Jr., District Judge.
(CR-99-208)
Submitted: November 30, 2000
Decided: December 20, 2000
Before NIEMEYER, MOTZ, and TRAXLER, Circuit Judges.
No. 00-4364 affirmed and No. 00-4365 dismissed by unpublished per
curiam opinion.
2 UNITED STATES v. DAUGHERTY
COUNSEL
Gregory M. Courtright, COLLINS & COURTRIGHT, Charleston,
West Virginia; Nathan A. Hicks, Jr., Charleston, West Virginia, for
Appellants. Rebecca A. Betts, United States Attorney, Monica K.
Schwartz, Assistant United States Attorney, Charleston, West Vir-
ginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Phillip L. Daugherty pled guilty to conspiracy to distribute cocaine
base (crack) in violation of 21 U.S.C.A. § 846 (West 2000), and was
sentenced to a term of ninety-two months imprisonment. Jamie Tressa
Bumpus pled guilty to one count of distributing crack in violation of
21 U.S.C.A. § 841(a) (West 2000), and received a sentence of twelve
months and one day. Both appeal their sentences. Daugherty contends
that the district court clearly erred in determining the amount of crack
attributable to him for sentencing purposes and in denying him an
adjustment for acceptance of responsibility. U.S. Sentencing Guide-
lines Manual, §§ 2D1.1, 3E1.1 (1998). Bumpus maintains that the
district court incorrectly applied the guidelines when it denied her
motion for a departure for duress and coercion. USSG § 5K2.12, p.s.
We affirm Daugherty’s sentence and dismiss Bumpus’s appeal.
Daugherty acknowledged his responsibility for several grams of
crack seized from the vehicle in which he was a passenger when he
was arrested.* At his sentencing hearing, the government presented
*The car belonged to Levi Phillips, who cooperated with investigators
and testified before a grand jury, then became a fugitive before
Daugherty was sentenced.
UNITED STATES v. DAUGHERTY 3
evidence of additional amounts of crack attributable to Daugherty
through the testimony of Lisa Gibson, a paid informant. Gibson was
extensively cross-examined and questioned by the district court judge.
She maintained consistently that she bought crack worth $10, $20,
and $50 from Daugherty five to ten times, that she had seen him on
other occasions with a plastic sandwich bag containing crack, had
seen him cooking crack once, and afterward had seen him with a two-
inch cookie of crack. Daugherty testified that he sold Gibson $20
worth of crack twice in 1996, but had not seen her after that until the
day he was arrested, when she came to his house as he was leaving.
The district court found Gibson’s testimony more credible than
Daugherty’s. The credibility of a witness is a matter for the factfinder,
and is not susceptible to review. United States v. Feurtado, 191 F.3d
420, 424 n.2 (4th Cir. 1999), cert. denied, 120 S. Ct. 1840 (2000).
Based on Gibson’s testimony, the district court determined that
Daugherty was responsible for 17.18 grams of crack. The district
court’s determination of this factual issue is reviewed for clear error.
United States v. Randall, 171 F.3d 195, 210 (4th Cir. 1999). Given
that the district court found Gibson’s testimony credible, we cannot
say that the court clearly erred in finding that Daugherty was respon-
sible for 17.18 grams of crack.
The district court found that Daugherty had falsely denied relevant
conduct for which he was accountable and, on that basis, held that he
had not accepted responsibility. See USSG § 3E1.1, comment.
(n.1(a)) (defendant who falsely denies relevant conduct that district
court determines to be true acts in a manner inconsistent with accep-
tance of responsibility). We do not find that the district court clearly
erred in so finding. See United States v. Ruhe, 191 F.3d 376, 388 (4th
Cir. 1999) (providing standard).
Bumpus, who lived with Daugherty, presented evidence at her sen-
tencing that Daugherty abused her, and requested a downward depar-
ture based on coercion and duress under USSG § 5K2.12. The district
court found that the abuse had occurred, but that Bumpus’s criminal
conduct did not result from the abuse, and that a departure was not
warranted. The district court’s decision not to depart is not reviewable
on appeal unless the district court’s decision is based on a mistaken
belief that it lacks authority to depart. United States v. Brock, 108
4 UNITED STATES v. DAUGHERTY
F.3d 31, 33 (4th Cir. 1997). Here, the record discloses no such mis-
take on the part of the district court.
We therefore affirm Daugherty’s sentence and dismiss Bumpus’s
appeal for lack of jurisdiction. 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.
No. 00-4364 — AFFIRMED
No. 00-4365 — DISMISSED