United States v. Mayes , 80 F. App'x 893 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 03-4295
ERNEST LEANDREW MAYES,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Malcolm J. Howard, District Judge.
(CR-01-99-HO)
Submitted: October 31, 2003
Decided: November 19, 2003
Before WILLIAMS and MICHAEL, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
Kelly Latham Greene, STUBBS & PERDUE, P.A., New Bern, North
Carolina, for Appellant. Anne Margaret Hayes, Assistant United
States Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. MAYES
OPINION
PER CURIAM:
Ernest Leandrew Mayes appeals his sentence for a violation of 21
U.S.C. § 841(a)(1) (2000). Mayes’s attorney has filed a brief in accor-
dance with Anders v. California, 386 U.S. 738 (1967). Although
counsel states that there are no meritorious issues for appeal, he chal-
lenges the district court’s conversion of currency into its drug equiva-
lency for sentencing purposes under U.S. Sentencing Guidelines
Manual § 2D1.1. The Government has elected not to file a responding
brief. Although informed of his right to file a brief, Mayes has not
done so. In accordance with Anders, we have considered the brief and
examined the entire record for meritorious issues. Finding no error,
we affirm.
The calculation of an amount of drugs to establish a base offense
level is a factual determination we review for clear error. United
States v. Daughtrey, 874 F.2d 213, 217-18 (4th Cir. 1989). Conver-
sion of seized currency into drugs for the purpose of setting an
offense level is permissible. United States v. Hicks, 948 F.2d 877,
881-82 (4th Cir. 1991); U.S. Sentencing Guidelines Manual § 2D1.1,
comment. (n.12) (2002). However, it is the government’s burden to
prove by a preponderance of the evidence the connection between the
money seized and the drug-related activity. United States v. Gonzalez-
Sanchez, 953 F.2d 1184, 1187 (9th Cir. 1992).
Mayes argues that the district court erred by converting currency
seized during a search of his residence into its drug equivalency for
sentencing purposes because the Government failed to prove by a pre-
ponderance of the evidence a connection between the currency and
drug activity. We disagree.
The money in question was located in very close proximity to
drugs, a firearm, ammunition, a digital scale with drug residue, and
cell phones, all of which were seized from Mayes’s bedroom. Further-
more, Mayes’s contention that some of the money was legitimate
employment income is not supported by the evidence. Importantly,
Social Security Administration records indicated no reported earnings
for 1998 through 2002, and the Internal Revenue Service was unable
UNITED STATES v. MAYES 3
to properly identify Mayes through the name and Social Security
number provided to his probation officer. Moreover, Mayes’s room-
mate, who was arrested on drug charges just prior to the search of the
residence, told police that Mayes was a "dope dealer." Even assuming
that some of the money was derived from legitimate sources, Mayes
fails to explain where all of the money came from, why he had such
a large amount of cash in his residence, or what he intended to use
the money for. Thus, we find that the Government proved by a pre-
ponderance of the evidence a connection between the currency and
the drug activity.
We also find that the district court’s conversion was correct. The
record reveals that $32,276 in United States currency was seized from
the residence. Under the rule of leniency, the district court reduced
that amount by $5000, leaving $27,276. Based on testimony from a
special agent with the Bureau of Alcohol, Tobacco, and Firearms, at
the time the currency was seized, one gram of cocaine sold for $100
and one kilogram of cocaine sold for $22,000 to $23,000. The district
court correctly determined that at $23,000 per kilogram, the seized
currency was equivalent to 1.186 kilograms of powder cocaine. The
court then added the 237.1 grams of actual powder cocaine attributed
to Mayes, resulting in a total of 1.423 kilograms of powder cocaine.
This yielded a base offense level of twenty-six. Two levels were
added for a dangerous weapon enhancement and three levels were
subtracted for acceptance of responsibility, resulting in an offense
level of twenty-five. The district court found Mayes had a criminal
history category of I. Thus, Mayes’s sentence of sixty years’ impris-
onment was within the appropriate fifty-seven to seventy-one year
sentencing range.
For these reasons, we find that the Government proved by a pre-
ponderance of the evidence the connection between the seized cur-
rency and the drug activity. We further find that the district court did
not err by converting the seized currency into its drug equivalency for
sentencing purposes and that the conversion was correct.
In accordance with Anders, we have reviewed the entire record in
this case and have found no meritorious issues for appeal. We there-
fore affirm Mayes’s sentence. This court requires that counsel inform
his client, in writing, of his right to petition the Supreme Court of the
4 UNITED STATES v. MAYES
United States for further review. If the client requests that a petition
be filed, but counsel believes that such a petition would be frivolous,
then counsel may move in this court for leave to withdraw from repre-
sentation. Counsel’s motion must state that a copy thereof was served
on the client.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED