United States v. Franklin ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4783
JACKIE FRANKLIN,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Rock Hill.
Joseph F. Anderson, Jr., District Judge.
(CR-95-872)
Submitted: June 12, 1997
Decided: June 24, 1997
Before WIDENER and WILLIAMS, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Louis H. Lang, CALLISON, TIGHE, ROBINSON & HAWKINS,
L.L.P., Columbia, South Carolina, for Appellant. J. Rene Josey,
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Unpublished opinions are not binding precedent in this circuit.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).
_________________________________________________________________
OPINION
PER CURIAM:
Jackie Franklin appeals from his sentence upon his plea of guilty
to conspiring to possess with the intent to distribute cocaine base in
violation of 21 U.S.C. § 841(a)(1) (1994). The district court sentenced
him to 235 months of incarceration and five years of supervised
release. On appeal, Franklin challenges two rulings made by the court
as to the amount of drugs attributed to him.
The court must establish the amount of drugs attributable to a
defendant for sentencing purposes by a preponderance of the evi-
dence. See United States v. Irvin, 2 F.3d 72, 75 (4th Cir. 1993). The
district court's factual determination of the amount of drugs attribut-
able to a defendant is reviewable for clear error. See United States v.
McDonald, 61 F.3d 248, 255 (4th Cir. 1995). Furthermore, the district
court is afforded broad discretion as to what information to credit in
making its calculations. See United States v. Falesbork, 5 F.3d 715,
722 (4th Cir. 1993).
Franklin claims that the court erred by attributing 7-1/2 ounces of
crack cocaine to him based on a statement by Carlos Davis, which
was admitted into evidence at sentencing. According to the statement,
Davis saw Franklin cut up 1-1/2 ounces of crack cocaine. Davis also
stated that he had known Franklin to pick up crack cocaine three
times a week in quantities of two to three ounces. A police officer tes-
tified at Franklin's sentencing hearing as to an interview with Davis
during which Davis related the same information contained in his
statement. Franklin contends that Davis's statement is insufficient to
establish that the conduct therein was part of the same course of con-
duct or common scheme or plan as the offense of conviction because
the charged conspiracy covers a period from 1993 through 1995 and
Davis's statement begins by relating that Franklin had been selling
drugs since 1989. The court did not clearly err in finding that Davis's
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statement also covered the time period of the charged conspiracy.
Also, district courts may take relevant conduct into account in deter-
mining a defendant's sentence whether or not the defendant has been
convicted of the charges constituting the relevant conduct. See United
States Sentencing Commission, Guidelines Manual , § 1B1.3 (Nov.
1996); United States v. Jones, 31 F.3d 1304, 1316 (4th Cir. 1994). It
is irrelevant that Davis was not a co-defendant or that there was testi-
mony that contradicted Davis's statement.
Franklin also argues that there is no indication that the 1-1/2 ounce
that Davis allegedly saw Franklin cut up was not part of the two or
three ounces Franklin got in a week. In a case such as this, however,
"``[w]here there is no drug seizure or the amount seized does not
reflect the scale of the offense, the court shall approximate the quan-
tity of the controlled substance.'" United States v. D'Anjou, 16 F.3d
604, 614 (4th Cir. 1994) (quoting U.S.S.G. § 2D1.1, comment.
(n.12)). The sentencing guidelines do not demand certainty and preci-
sion; they demand that a court do the best that it can with the evidence
in the record, erring on the side of caution. See United States v. Cook,
76 F.3d 596, 604 (4th Cir.), cert. denied, ___ U.S. ___, 65 U.S.L.W.
3293 (U.S. Oct. 15, 1996) (No. 96-5822); United States v. Uwaeme,
975 F.2d 1016, 1018-19 (4th Cir. 1992). Thus, we afford the district
court broad discretion in making this estimate. See Cook, 76 F.3d at
604. We find that the court did not clearly err in conservatively esti-
mating the amount of cocaine base attributable to Franklin as 7-1/2
ounces based on Davis's statement.
Franklin next contends that the court erred by attributing 106.3125
grams of cocaine base to him based on testimony that was not credi-
ble. However, the credibility of a witness is the sole province of the
finder of fact and is not subject to review on appeal. See United States
v. Saunders, 886 F.2d 56, 60 (4th Cir. 1989). We find no error in the
amount of drugs the court attributed to Franklin.
Accordingly, we affirm Franklin's sentence. We dispense with oral
argument because the facts and legal contentions are adequately pres-
ented in the materials before the court and argument would not aid the
decisional process.
AFFIRMED
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