United States v. Marker ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 03-4039
BRANDON MARKER, a/k/a B, a/k/a
Bart A. Speziali,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 03-4040
CORY RICHARD FERES,
Defendant-Appellant.

Appeals from the United States District Court
for the Southern District of West Virginia, at Charleston.
Charles H. Haden II, District Judge.
(CR-02-84)
Submitted: July 16, 2003
Decided: July 29, 2003
Before WIDENER, WILLIAMS, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
2 UNITED STATES v. MARKER
COUNSEL
Mary Lou Newberger, Federal Public Defender, Edward H. Weis,
Assistant Federal Public Defender, Charleston, West Virginia; Mat-
thew A. Victor, VICTOR VICTOR & HELGOE, LLP, Charleston,
West Virginia, for Appellants. Kasey Warner, United States Attorney,
Travis N. Gery, Assistant United States Attorney, Charleston, West
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Brandon Marker and Cory Richard Feres pleaded guilty to one
count of possession with intent to distribute cocaine and aiding and
abetting, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2(2000); Marker also pleaded guilty to one count of use and carry of
firearms during and in relation to a drug trafficking crime and aiding
and abetting, in violation of 18 U.S.C. §§ 924(c)(1), 2 (2000). They
appeal their sentences. Because we find that the district court did not
clearly err in determining their sentences under the Sentencing Guide-
lines,* we affirm.
On appeal, Feres contends that the district court erred in including
cash seized incident to his arrest as relevant conduct. He argues that,
because the money was the proceeds of Marker’s marijuana distribu-
tion that occurred in 2001, and he had nothing to do with the distribu-
tion until after it was completed, he did not aid or abet the
distribution, and could not be held responsible for any proceeds from
the distribution.
*U.S. Sentencing Guidelines Manual (2001).
UNITED STATES v. MARKER 3
A district court’s determination of the amount of drugs attributable
as relevant conduct is reviewed only for clear error. United States v.
Hicks, 948 F.2d 877, 881 (4th Cir. 1991). Where, as here, the crimes
involve drug trafficking, the Guidelines define relevant conduct to
include "all acts and omissions . . . that were part of the same course
of conduct or common scheme or plan as the offense of conviction."
USSG § 1B1.3(a)(2). The Guidelines also provide that "[t]ypes and
quantities of drugs not specified in the count of conviction may be
considered in determining the offense level." USSG § 2D1.1, com-
ment. (n.12); United States v. Ellis, 975 F.2d 1061, 1067 (4th Cir.
1992). Our review of the record, including Feres’s statements at his
plea hearing, leads us to conclude that the district court did not err in
concluding that the cash seized was properly attributable to Feres as
relevant conduct.
Marker contends that the district court erred in enhancing his
offense level for an aggravating role in the offense. He argues that the
evidence showed that he and Feres played equal roles in the offense,
and the two level enhancement was not justified. 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).
A two-level adjustment for role in the offense is appropriate when
"the defendant was an organizer, leader, manager, or supervisor in
any criminal activity other than" more extensive activities meriting
three or four level enhancements. USSG § 3B1.1(c). An enhancement
for aggravating role requires, at a minimum, that "the defendant must
have been the organizer, leader, manager, or supervisor of one or
more other participants." USSG § 3B1.1, comment. (n.2). The record
demonstrates that Marker exercised all decision making authority in
the incidents that preceded the defendants’ arrest, and directed Feres
in several particulars of the trip from New York to West Virginia. We
conclude that the district court’s application of the enhancement for
Marker’s leadership role is supported by the evidence in the case and
was not clearly erroneous.
Accordingly, we affirm the convictions and sentences of Marker
and Feres. 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