United States v. Harris ( 2010 )


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  •                               UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 08-5034
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.
    TENNYSON HARRIS, a/k/a Teddy, a/k/a Mark T,
    Defendant - Appellant.
    Appeal from the United States District Court for the District of
    Maryland, at Greenbelt.     Peter J. Messitte, Senior District
    Judge. (8:00-cr-00253-PJM-3)
    Submitted:    December 30, 2009             Decided:   January 25, 2010
    Before KING, GREGORY, and SHEDD, Circuit Judges.
    Affirmed by unpublished per curiam opinion.
    Sicilia Chinn Englert, LAWLOR & ENGLERT, LLC, Greenbelt,
    Maryland, for Appellant.      Rod J. Rosenstein, United States
    Attorney, Steven M. Dunne, Assistant United States Attorney,
    Greenbelt, Maryland, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    Tennyson Harris appeals the sentence imposed by the
    district         court    on    remand      from           this   court        for       resentencing
    pursuant to United States v. Booker, 
    543 U.S. 220
     (2005).                                               A
    jury convicted Harris of conspiracy to distribute and possess
    with intent to distribute 1000 kilograms or more of marijuana,
    in violation of 
    21 U.S.C. § 846
     (2006).                              In this appeal, Harris
    argues that the district court erred in determining that he was
    responsible for over 3000 kilograms of marijuana, which resulted
    in     a    base    offense       level       of       thirty-four            pursuant         to    U.S.
    Sentencing         Guidelines       Manual         (“USSG”)         §    2D1.1(c)(3)            (2001).
    Specifically, he asserts that the court’s method of averaging
    the    number      of    drug     hauling     trips          performed         by    various        truck
    drivers and multiplying that figure by an assumed quantity of
    marijuana hauled on each trip was not supported by the record.
    This court reviews the district court’s calculation of
    the quantity of drugs attributable to a defendant for sentencing
    purposes for clear error.                   United States v. Randall, 
    171 F.3d 195
    , 210 (4th Cir. 1999).                   Clear error occurs when the court,
    upon       reviewing      the     record      as       a    whole,       is    “‘left         with    the
    definite         and     firm      conviction              that     a     mistake             has    been
    committed.’”             Easley    v.   Cromartie,            
    532 U.S. 234
    ,      242       (2001)
    (quoting United States v. United States Gypsum Co., 
    333 U.S. 364
    ,       395   (1948)).         “If   the    defendant            objects         to    a    quantity
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    recommended in a presentence report, the district court must
    make an independent resolution of the factual issues raised by
    the objection.”        United States v. Williams, 
    152 F.3d 294
    , 300-01
    (4th Cir. 1998).           The Government must establish the quantity of
    drugs   attributable        to    a    defendant        by    a       preponderance           of    the
    evidence and may do so through the introduction of relevant and
    reliable evidence.           United States v. Jones, 
    31 F.3d 1304
    , 1316
    (4th Cir. 1994).
    “Where there is no drug seizure or the amount seized
    does    not   reflect      the    scale     of    the    offense,            the      court    shall
    approximate the quantity of the controlled substance.”                                             USSG
    § 2D1.1, comment. (n.12).               “The district court is afforded broad
    discretion      as    to   what       information        to       credit         in    making       its
    calculations.”         United States v. Cook, 
    76 F.3d 596
    , 604 (4th
    Cir.    1996)      (internal      quotation       marks       omitted).                “Direct      or
    hearsay       testimony      of       lay   witnesses             .     .    .        can   provide
    sufficiently reliable evidence of quantity.                                 Where witnesses’
    estimates of drug amounts are uncertain, however, a district
    court is well advised to sentence at the low end of the range to
    which the witness testified.”                    United States v. Sampson, 
    140 F.3d 585
    , 592 (4th Cir. 1998) (internal citations omitted).
    In     arguing      that      the     district                court       erred       in
    determining drug quantity, Harris relies principally on United
    States v. Sepulveda, 
    15 F.3d 1161
    , 1198 (1st Cir. 1993), in
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    which     the    district       court       relied     on     trial        testimony         that
    addressed       drug    quantities      in    a    general     manner.            The        First
    Circuit vacated the sentence, holding that “where uncertainty
    reigns”    about       the   amount    of    drugs     involved       in    a    conspiracy,
    courts should “err on the side of caution.”                           
    Id.
            This court,
    however,     has       rejected      the     holding     in     Sepulveda          in        clear
    language: “we hold that a district court need not ‘err,’ on the
    side of caution or otherwise; it must only determine that it was
    more likely than not that the defendant was responsible for at
    least the drug quantity attributed to him.”                           United States v.
    Kiulin, 
    360 F.3d 456
    , 461 (4th Cir. 2004).                        Our review of the
    record convinces us that the district court’s methodology was
    proper     and    the    drug     quantity        attributed     to        Harris       by    the
    district court was supported by the evidence.
    Accordingly, we affirm Harris’s sentence.                           We dispense
    with oral argument because the facts and legal conclusions are
    adequately       presented      in    the    materials        before       the    court       and
    argument would not aid the decisional process.
    AFFIRMED
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