United States v. Finley ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4203
PATRICK FINLEY,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Aiken.
Charles E. Simons, Jr., Senior District Judge.
(CR-95-365)
Submitted: September 10, 1996
Decided: September 27, 1996
Before HALL, LUTTIG, and WILLIAMS, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Jan S. Strifling, Columbia, South Carolina, for Appellant. J. Rene
Josey, United States Attorney, Beth Caldwell, Assistant United States
Attorney, Columbia, South Carolina, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Appellant Patrick Finley appeals his sentence of ninety-three
months incarceration after pleading guilty to conspiracy to possess
with intent to distribute cocaine, cocaine base, and marijuana,1 and
possession with intent to distribute cocaine and marijuana.2 Finley
contends that the district court erred in determining his base offense
level by converting sums of money seized or transferred by Western
Union money orders into an equivalent amount of cocaine base. Find-
ing no reversible error, we affirm Finley's sentence.
First, Finley waived his right to challenge the origin and the nature
of the funds at issue, absent plain error.3 At sentencing, counsel
stated, "[w]e don't have any factual issues to present as far as the
amount of money or the origins thereof." However, Finley now
claims that he should not be accountable for the cash seized from a
co-defendant or for the amount transferred via Western Union. Finley
asserts that he should not be responsible for the amount of drugs or
currency involving other persons and also makes the vague assertion
that the amounts may be from an unrelated activity of which he has
no knowledge or connection. Finley's claim is without merit. Finley
provides absolutely no support for his other activities claim and in
cases of criminal activity undertaken in concert with others, whether
or not charged as a conspiracy, the conduct for which the defendant
"would be otherwise accountable" also includes conduct of others in
furtherance of the execution of the jointly-undertaken criminal activ-
ity that was reasonably foreseeable by the defendant.4 Consequently,
the district court's action of attributing all amounts of drugs and cash
from the conspiracy to Finley does not constitute plain error.
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1 21 U.S.C. § 846 (1988).
2 21 U.S.C. § 841 (1988).
3 FED. R. CRIM. P. 52(b); see United States v. Olano, 507 U.S. 725, 731-
32 (1993).
4 U.S.S.G. § 1B1.3(a)(1); United States v. Nelson, 6 F.3d 1049, 1056
(4th Cir. 1993), cert. denied, 62 U.S.L.W. 3792 (U.S. May 31, 1994)
(No. 93-8210).
2
Next, Finley asserts that the federal sentencing guidelines do not
permit the district court to convert cash and other records held by co-
conspirators into an amount of cocaine base for determining his base
offense level. Finley acknowledges that in United States v. Hicks5 we
held that seized currency may be converted to its equivalent in drugs
for purposes of sentencing,6 but he claims that Hicks is limited to the
actual possessors of the cash and should not be applied to a co-
conspirator. We find Finley's reading of Hicks to be too narrow.
Where the amount of drugs seized does not reflect the scale of the
offense, the sentencing judge should approximate the quantity of the
controlled substance. In making this determination, the judge may
consider, for example, the price generally obtained for the controlled
substance, financial or other records, similar transactions in controlled
substances by the defendant, and the size or capability of any labora-
tory involved.7 Therefore, the district court may convert seized cur-
rency into an equivalent amount of the charged drug as long as the
government proves the connection between the money seized and the
drug-related activity.8 Additionally, for the reasons stated earlier, the
entire amount of drugs involved in the overall conspiracy are attribut-
able to Finley.9
Determinations of the quantity of cocaine base to be considered as
relevant conduct for the purpose of calculating a defendant's base
offense level are factual in nature and subject to the clearly erroneous
standard of review.10 The government need only prove the amount of
drugs or drug proceeds by a preponderance of the evidence,11 and
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5 948 F.2d 877 (4th Cir. 1991).
6 Hicks, 948 F.2d at 881-83; see also United States v. Jackson, 990 F.2d
251, 253 (6th Cir. 1993); United States v. Stephenson, 924 F.2d 753,
764-65 (8th Cir.), cert. denied, 502 U.S. 813 (1991); United States v.
Gerante, 891 F.2d 364, 386-87 (1st Cir. 1989).
7 U.S.S.G. § 2D1.1, comment. (n.12).
8 United States v. Hicks, 948 F.2d at 881-83.
9 See United States v. Vinson, 886 F.2d 740, 742 (4th Cir. 1989), cert.
denied, 493 U.S. 1062 (1990).
10 Hicks, 948 F.2d at 881.
11 United States v. Powell, 886 F.2d 81, 85 (4th Cir. 1989), cert. denied,
493 U.S. 1084 (1990).
3
statements by co-conspirators are sufficient for this purpose.12 In
reviewing the evidence, we find it sufficient to satisfy the govern-
ment's burden.
Having found Finley's objections to be without merit, we conclude
that the district court's finding on the quantity of cocaine used to cal-
culate Finley's base offense level was not clearly erroneous. Accord-
ingly, we affirm Finley's sentence of ninety-three months
incarceration. 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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12 United States v. Burns, 990 F.2d 1426, 1439 (4th Cir.), cert. denied,
508 U.S. 967 (1993).
4