United States v. Jimenez , 324 F. App'x 204 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5052
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JONATHAN JIMENEZ,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg. Samuel G. Wilson, District
Judge. (5:01-cr-30058-SGW)
Submitted: June 29, 2007 Decided: July 25, 2007
Before KING, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
R. Darren Bostic, BOSTIC & BOSTIC, P.C., Harrisonburg, Virginia,
for Appellant. John L. Brownlee, United States Attorney, Ray B.
Fitzgerald, Jr., Assistant United States Attorney, Charlottesville,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM
Jonathan Jimenez was convicted by a jury of conspiracy to
distribute more than fifty grams of crack cocaine, in violation of
21 U.S.C. § 846 (2000), and sentenced to life imprisonment. We
affirmed Jimenez’s conviction but vacated his sentence and remanded
for re-sentencing consistent with United States v. Booker, 543
U.S. 220 (2005). See United States v. Jimenez, No. 02-4511 (4th
Cir. July 28, 2005) (unpublished).
On remand, the district court conducted a re-sentencing
hearing and determined that Jimenez’s total offense level remained
at 43; with a criminal history category I, the resulting guideline
range remained at life imprisonment. After considering the factors
set forth in 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2007), the
district court imposed a below-guidelines sentence of 360 months
imprisonment. Jimenez noted a timely appeal.
Jimenez claims, first, that the district court erred in
attributing to him over 1.5 kilograms of crack. Jimenez also
asserts that the probation officer derived the quantity of crack
cocaine from a “guess” after hearing testimony and speaking to an
investigator.
We review the district court’s calculation of the
quantity of drugs attributable to a defendant for sentencing
purposes for clear error. See United States v. Tucker, 473 F.3d
556, 560 (4th Cir. 2007) (stating standard of review); United
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States v. Randall, 171 F.3d 195, 210 (4th Cir. 1999). In
calculating drug amounts, the district 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).
Here, the probation officer based her calculation on the
testimony of a number of witnesses and on her own interviews.
Specifically, at Jimenez’s trial, the evidence established that the
co-conspirators purchased one kilogram of powder cocaine each week
in New York and transported it to Virginia, where it would be
processed into crack cocaine, for a total of fifty-two kilograms
over the period charged in the indictment. According to one
witness, Jimenez traveled to New York every two weeks to purchase
powder cocaine, in quantities of no less than 1000 grams, that he
would then “cook” into crack upon his return to Harrisonburg.
Based on this and other testimony, the probation officer stated
that her estimate of twelve kilograms was extremely conservative.
Based on this evidence, we find that the district court did not
clearly err in finding that Jimenez was responsible for more than
1.5 kilograms of crack cocaine. To the extent that Jimenez
challenges the probation officer’s reliance on the testimony of co-
conspirators and drug users, it is well established that the
question of witness credibility is within the sole province of the
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jury and not susceptible to review. United States v. Saunders, 886
F.2d 56, 60 (4th Cir. 1989).
Next, Jimenez challenges the four-level enhancement he
received for being a leader or organizer of the conspiracy. See
U.S. Sentencing Guidelines Manual § 3B1.1(a) (2001). A district
court’s determination of the defendant’s role in the offense is
reviewed for clear error. United States v. Sayles, 296 F.3d 219,
224 (4th Cir. 2002).
To qualify for a four-level increase under § 3B1.1(a), a
defendant must have been “an organizer or leader of a criminal
activity that involved five or more participants or was otherwise
extensive.” Here, the testimony established that Jimenez
supervised at least six individuals in the distribution of crack
cocaine in the Harrisonburg area and maintained two apartments and
multiple vehicles to assist in distribution efforts. We find no
clear error in the district court’s application of the four-level
enhancement for Jimenez’s leadership role.
Next, Jimenez asserts that the presumption of
reasonableness accorded by this court to sentences within the
sentencing guidelines range renders the guidelines “effectively
mandatory.” Contrary to his assertion, however, the district
court here clearly recognized and exercised its discretion to
impose a sentence outside of the guidelines range, and in fact did
so. Accordingly, this claim fails as well.
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Finally, Jimenez argues that he should be sentenced under
the penalties applicable to powder cocaine rather than crack
cocaine. However, this court has rejected Jimenez’s argument that
the increased punishment for crack may be ignored. See United
States v. Eura, 440 F.3d 625, 634 (4th Cir. 2006) (finding that
district court’s rejection of 100:1 crack to powder cocaine ratio
is unreasonable and “impermissibly usurps Congress’s judgment about
the proper sentencing policy for cocaine offenses”) (internal
quotation marks and citation omitted), petition for cert. filed, __
U.S.L.W. __ (U.S. June 20, 2006) (No. 05-11659).
Accordingly, we affirm Jimenez’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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