United States v. Monroe ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4498
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
SHAUNN MONROE, a/k/a Mon Mon,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. John T. Copenhaver, Jr.,
District Judge. (CR-04-170)
Submitted: September 16, 2005 Decided: October 13, 2005
Before WILKINSON and TRAXLER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Mary Lou Newberger, Federal Public Defender, David R. Bungard,
Assistant Federal Public Defender, Charleston, West Virginia, for
Appellant. Kasey Warner, United States Attorney, John J. Frail,
Assistant United States Attorney, Charleston, West Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Shaunn Monroe appeals the 63-month sentence imposed
following his guilty plea to distribution of cocaine base, in
violation of 21 U.S.C. § 841(a)(1) (2000). He raises three issues
on appeal, contending that: (1) the retroactive application of the
remedial holding of United States v. Booker, 125 S. Ct. 738 (2005),
violates ex post facto and due process principles; (2) the district
court clearly erred in calculating his relevant conduct; and
(3) his sentence, imposed by the district court after considering
the sentencing guidelines as advisory, is unreasonable. Finding no
merit to Monroe’s claims, we affirm.
In Monroe’s first claim, he argues that his due process
rights, in conjunction with ex post facto principles, are violated
by the imposition of a sentence under the Supreme Court’s remedial
decision in Booker (referring to the Court’s opinion expressed
through Justice Breyer, which makes the guidelines advisory rather
than mandatory), rather than under the mandatory guidelines
applicable at the time of his offense. We have thoroughly reviewed
Monroe’s claim and find it to be without merit based on the
reasoning of our sister circuits. See United States v. Dupas, 419
F.3d 916 (9th Cir. 2005) (rejecting ex post facto claim); United
States v. Jamison, 416 F.3d 538 (7th Cir. 2005) (same); United
States v. Lata, 415 F.3d 107 (1st Cir. 2005) (same); United States
v. Scroggins, 411 F.3d 572, 576 (5th Cir. 2005) (same); United
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States v. Duncan, 400 F.3d 1297 (11th Cir. 2005) (same), petition
for cert. filed, __ U.S.L.W. __ (U.S. July 20, 2005) (No. 05-5467).
Next, Monroe claims that the district court clearly erred
in crediting the testimony of the confidential informant in his
case and holding him responsible for a total of 27.89 grams of
cocaine base. A district court’s determination of the drug
quantity attributable to a defendant is a factual finding reviewed
for clear error. United States v. Randall, 171 F.3d 195, 210 (4th
Cir. 1999). The Government bears the burden of proving relevant
conduct by a preponderance of the evidence. United States v. Cook,
76 F.3d 596, 604 (4th Cir. 1996). In calculating drug amounts, the
court may consider any relevant information, provided that the
information has sufficient indicia of reliability to support its
accuracy. United States v. Uwaeme, 975 F.2d 1016, 1021 (4th Cir.
1992). Under the guidelines, drug quantities not specified in the
counts of conviction are considered relevant conduct when they are
part of the same course of conduct or common plan or scheme. U.S.
Sentencing Guidelines Manual (“USSG”) § 1B1.3(a)(2) (2004). We
find that Monroe’s previous sales of cocaine base to the
confidential informant are sufficiently similar in degree and
regularity to include these drug amounts in his relevant conduct.
See USSG § 1B1.3, comment. (n.9(B)). We further find that the
district court did not clearly err in determining the relevant
conduct amount of drug quantity attributable to Monroe.
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Finally, we note that Monroe’s sentencing occurred on
April 6, 2005, after the Supreme Court’s decision in Booker. The
district court, in sentencing Monroe, carefully and thoroughly
applied the holding in Booker. The court sentenced Monroe only
after considering and examining the sentencing guidelines and the
factors set forth in 18 U.S.C.A. § 3553(a) (West 2000 & Supp.
2005), as instructed by Booker. The court sentenced Monroe at the
bottom of the applicable guideline range and well within the
twenty-year statutory maximum. We cannot conclude under these
circumstances that Monroe’s 63-month sentence is unreasonable.
Accordingly, we affirm Monroe’s 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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