United States v. Mayberry ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4237
JOSHUA ALLEN MAYBERRY,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Virginia, at Harrisonburg.
James P. Jones, District Judge.
(CR-98-3)
Submitted: December 14, 1999
Decided: December 28, 1999
Before NIEMEYER, LUTTIG, and WILLIAMS, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Sa'ad El-Amin, Beverly D. Crawford, EL-AMIN & CRAWFORD,
Richmond, Virginia, for Appellant. Robert P. Crouch, Jr., United
States Attorney, Ray B. Fitzgerald, Jr., Assistant United States Attor-
ney, Charlottesville, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Joshua Allen Mayberry appeals from his sentence following his
plea of guilty to five counts of distribution of cocaine base in viola-
tion of 21 U.S.C.A. § 841 (West 1999). We affirm.
Mayberry contends that the district court erred in attributing to him
more than 28 grams of cocaine base on the basis of a co-conspirator's
statement to police. Mayberry argues that the hearsay statement pres-
ented at the sentencing hearing was not sufficiently reliable and there-
fore should not have been considered in calculating his sentence.
A district court's factual finding of the relevant quantity of drugs
is reviewed for clear error. See 18 U.S.C.§ 3742(e) (1994); United
States v. Fletcher, 74 F.3d 49, 55 (4th Cir. 1996). The quantity of a
drug is not a substantive element of the crime involved; rather, it is
merely a sentencing factor that the government must prove by a pre-
ponderance of the evidence. See United States v. Goff, 907 F.2d 1441,
1444 (4th Cir. 1990). In calculating drug amounts, the court may con-
sider any relevant information, provided that the information has "suf-
ficient indicia of reliability to support its probable accuracy." United
States v. Uwaeme, 975 F.2d 1016, 1021 (4th Cir. 1992) (quoting U.S.
Sentencing Guidelines Manual § 6A1.3(a) (1991)). Consistent with
this policy, hearsay alone can provide sufficiently reliable evidence of
drug quantity. See id. "The district court's evaluation of reliability is
reviewed under an abuse of discretion standard." United States v.
Rhynes, ___ F.3d ___, 1999 WL 980361, *34 (4th Cir. Oct. 26, 1999)
(citing United States v. Petty, 982 F.2d 1365, 1369 (9th Cir. 1993)).
Reviewing the evidence presented at the sentencing hearing, we
conclude that the co-conspirator's statement was supported by suffi-
cient indicia of reliability to render it admissible for sentencing pur-
poses. Accordingly, the district court's use of the 28 grams in
calculating Mayberry's sentence was neither an abuse of discretion
nor clearly erroneous. We therefore affirm Mayberry's conviction and
sentence.
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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
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