United States v. James , 118 F. App'x 686 ( 2004 )

Rehearing granted, May 20, 2005
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4950
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ROBIELL DEANGELO JAMES,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. Margaret B. Seymour, District
Judge. (CR-03-148)
Submitted: September 29, 2004 Decided: December 13, 2004
Before WILKINSON, WILLIAMS, and MICHAEL, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Beattie B. Ashmore, PRICE, PASCHAL & ASHMORE, P.A., Greenville,
South Carolina, for Appellant. J. Strom Thurmond, Jr., United
States Attorney, E. Jean Howard, Assistant United States Attorney,
Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Robiell Deangelo James pled guilty to possession of five
grams or more of cocaine base (crack) with intent to distribute, 21
U.S.C. § 841(a), (b)(1)(B) (2000), and was sentenced to a term of
168 months imprisonment. James contends on appeal that the
district court clearly erred in finding that he was responsible for
213.45 grams of crack for sentencing purposes, U.S. Sentencing
Guidelines Manual § 2D1.1 (2002), and in failing to state a reason
for imposing the particular sentence when the guideline range
exceeded twenty-four months as required under 18 U.S.C.A.
§ 3553(c)(1) (West Supp. 2004). He also claims that the
government’s failure to produce a confidential informant at the
sentencing hearing violated his Sixth Amendment right to confront
witnesses, and that his sentence is invalid under Blakely v.
Washington, 124 S. Ct. 2531 (2004). We affirm.
On September 18, 2002, drug enforcement agents arrested
Rosalia Demetria Choice, who had been selling drugs and firearms in
Clinton, South Carolina. Choice agreed to cooperate and identified
James as her source for crack. She said she had been buying crack
from him since March 2002, had gone to his residence to buy crack
about seventy-five times, and had bought about 1.5 ounces of crack
each time. Choice then made a controlled purchase of 47.6 grams of
crack from James and paid him $600 in recorded funds for crack he
had previously fronted her. Shortly afterward, law enforcement
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officers executed a search warrant at James’ apartment, where they
seized $3992 in cash, including the $600 in recorded funds,
numerous firearms, and a small amount of marijuana. No additional
crack was found in James’ apartment.
James was charged with possession of more than five grams
of crack with intent to distribute and using and carrying a firearm
during and in relation to, and possessing a firearm in furtherance
of, a drug offense. He pled guilty to the drug offense but went to
trial on the 18 U.S.C. § 924(c) (2000) count. At his guilty plea
hearing, James admitted that he sold approximately 46 grams of
crack to Choice on September 18, 2002. Pursuant to the plea
agreement, he agreed to forfeit the $3992 recovered from his
apartment as the proceeds of drug sales. James was acquitted of
the § 924(c) charge after a bench trial. Choice and several
officers testified at James’ trial; their testimony principally
concerned his firearms.
Based on information from Choice, the probation officer
attributed 3.4 kilograms of crack to James as relevant conduct and
recommended a base offense level of 38 under USSG § 2D1.1. The
probation officer’s calculation drew upon Choice’s post-arrest
statement. The probation officer also subtracted the $600 in
recorded funds from the $3992 seized from James’ apartment and
converted the remaining $3392 to an equivalent quantity of crack,
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using a price of $1000 per ounce provided by the Drug Enforcement
Administration.
James objected that he was responsible only for 46.35
grams of crack, that Choice was not a credible witness concerning
other amounts, and that there was no evidence the money recovered
from his apartment was drug proceeds.
At the first sentencing hearing in November 2003, the
district court initially eliminated certain drug amounts from the
relevant conduct total to avoid double counting, decided that
Choice was a credible witness, and determined that James was
responsible for 3.33 kilograms of crack. However, before imposing
sentence, the court had second thoughts and decided that it would
rely solely on Choice’s trial testimony rather than her post-arrest
statement to law enforcement authorities. The court continued
sentencing so that a transcript of Choice’s testimony could be
prepared.
When sentencing resumed in December 2003, it became clear
from the trial transcript that Choice had testified she went to
James’ residence to buy crack from him about seventy-five times,
but her testimony did not establish how much crack she purchased.
The court then determined that James was responsible for 213.45
grams of crack, an amount that gave him a base offense level of 34
and a guideline range of 135-168 months.
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On appeal, James points out that the district court did
not explain how it determined that he was responsible for 213.45
grams of crack. We agree that the court’s calculation is difficult
to glean from the record. However, we conclude from the court’s
discussion that it considered only the 46.35 grams James sold
Choice in the controlled transaction on September 18 and converted
the seized $3392 at a rate of $600 per ounce rather than $1000 per
ounce. The sum of those amounts, 206.53 grams of crack, is more
than enough to give James a base offense level of 34.
Although James argues that a co-participant in criminal
activity is generally not a reliable witness, it is very clear from
the transcript that the district court did not rely on information
derived from Choice for its final determination of the drug amount.
James also maintains that the $3392 was erroneously treated as drug
proceeds; however, he conceded as much in his plea agreement when
he agreed to forfeit the money because it was subject to forfeiture
as charged in the indictment. The forfeiture provision of the
indictment charged that “[a]ll proceeds of the offenses charged in
Counts 1 and 2 . . . approximately $3992.00 in United States
currency” were forfeitable because “such proceeds were received in
exchange for controlled substances. . . .” On balance, we conclude
that the record provides ample evidence for a finding that James
sold at least 150 grams of crack.
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Pursuant to 18 U.S.C.A. § 3553(c)(1), a sentencing court
must state in open court its reasons for imposition of the
particular sentence when the guideline range exceeds twenty-four
months, as it did in this case. The court failed to comply with
this statutory requirement, but its error in not orally stating its
reason for imposing a sentence of 168 months is reviewed under the
plain error standard because James failed to object to the form of
the sentence when the court inquired whether there was any
objection. Under the plain error test, United States v. Olano, 507
U.S. 725, 732-37 (1993), a defendant must show that (1) error
occurred; (2) the error was plain; and (3) the error affected his
substantial rights. Id. at 732. Even when these conditions are
satisfied, this Court may exercise its discretion to notice the
error only if the error “seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings.” Id.(internal quotation marks omitted); United States v. Mackins, 315
F.3d 399, 406 (4th Cir.), cert. denied, 538 U.S. 1045 (2003).
We cannot say in this case that the court’s failure to
provide reasons for its sentence under § 3553(c)(1) requires
correction where trial counsel neither objected to the form of the
sentence, although the court invited comment, nor demanded a
statement of reasons.
James next argues that the government’s failure to
produce Choice as a witness at sentencing so that his attorney
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could cross-examine her about the amount of crack she bought from
him violated his Sixth Amendment right to confront witnesses. This
claim is meritless because the right of confrontation does not
extend to sentencing proceedings. Szabo v. Walls, 313 F.3d 392,
398 (7th Cir. 2002) (citing Williams v. New York, 337 U.S. 241(1949)).
Finally, James contends that resentencing is required
under Blakely because his sentence was enhanced based on facts
found by the district court rather than facts he admitted or facts
submitted to a jury. This claim is meritless because we recently
held that Blakely “does not affect the operation of the federal
sentencing guidelines.” United States v. Hammoud, ___ F.3d ___,
2004 WL 2005622, at *28 (4th Cir. Sept. 8, 2004) (en banc).
We therefore affirm the sentence imposed by the district
court. 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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