United States v. Kirk , 82 F. App'x 831 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 03-4347
JACKIE RAY KIRK,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
Charles H. Haden II, District Judge.
(CR-02-193)
Submitted: November 12, 2003
Decided: December 16, 2003
Before LUTTIG and WILLIAMS, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
Mary Lou Newberger, Federal Public Defender, Edward H. Weis,
Assistant Federal Public Defender, Charleston, West Virginia, for
Appellant. Kasey Warner, United States Attorney, Michael H. Spen-
cer, Assistant United States Attorney, Charleston, West Virginia, for
Appellee.
2 UNITED STATES v. KIRK
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Jackie Ray Kirk pled guilty to manufacturing by cultivation fifty
or more marijuana plants. He was sentenced to forty-one months of
imprisonment, and he now appeals. His attorney has filed a brief pur-
suant to Anders v. California, 386 U.S. 738 (1967), raising three
issues, but stating that there are no meritorious issues on appeal.
Although informed of his right to do so, Kirk has not filed a supple-
mental brief.
Kirk first contends that the district court erred at sentencing in
determining the number of marijuana plants for which he was respon-
sible. At the time of the search, the officers counted one hundred
plants, but nearer to the indictment, only fifty-two plants could be
confirmed. The district court attributed one hundred plants to Kirk.
In calculating drug amounts, the court may consider any relevant
information, provided that the information has sufficient indicia of
reliability to support its probably accuracy. See United States v.
Uwaeme, 975 F.2d 1016, 1021 (4th Cir. 1992). The Government must
establish by a preponderance of the evidence the amount of drugs
attributable to a particular defendant for sentencing purposes. United
States v. Jones, 31 F.3d 1304, 1316 (4th Cir. 1994). The district
court’s factual findings will be upheld absent clear error. See 18
U.S.C. § 3742(e) (2000); United States v. Lamarr, 75 F.3d 964, 972
(4th Cir. 1996).
Here, two officers testified that they counted one hundred plants at
the time of the search. The court was entitled to rely on such testi-
mony, as well as Officer Young’s conclusion, based on his experi-
ence, that some of the plants had degraded between the search and the
return of the indictment. Accordingly, reliance on the officers’ testi-
mony was not clear error.
UNITED STATES v. KIRK 3
Kirk next challenges the credibility of his cousin Harold Kirk,
whose testimony at sentencing was credited by the district court and
served as the basis for an obstruction of justice enhancement. This
court is required to give due regard to the district court’s opportunity
to judge the credibility of witnesses. 18 U.S.C. § 3742(e). Credibility
determinations therefore receive deference unless they are without
support in the record, United States v. Brown, 944 F.2d 1377, 1379-
80 (7th Cir. 1991), and are rarely disturbed on appeal. United States
v. Saunders, 886 F.2d 56, 60 (4th Cir. 1989).
Here, the district court had ample opportunity to observe both
Harold and Kirk’s demeanor and the substance of their testimony.
Therefore, we find that the district court did not clearly err in its deci-
sion to accept Harold’s testimony over that of Kirk. See United States
v. D’Anjou, 16 F.3d 604, 614 (4th Cir. 1994) (noting that this court
is "reluctant to overturn factual findings of the trial court, [and] this
is doubly so where the question goes to the demeanor and credibility
of witnesses at trial, since the district court is so much better situated
to evaluate these matters"). Thus, we uphold the district court’s fac-
tual determination that Kirk assaulted Harold mistakenly believing
that Harold was an informant.
Finally, Kirk contends that his sentence should not have been
enhanced under U.S. Sentencing Guidelines Manual § 3C1.1 (2002)
for obstruction of justice, because Harold was, in fact, not an infor-
mant. Thus, nothing Kirk did to Harold could change the course of
his sentencing.
Sentencing Guideline § 3C1.1 provides: "If . . . the defendant will-
fully obstructed or impeded, or attempted to obstruct or impede, the
administration of justice during the course of the investigation, prose-
cution, or sentencing of the instant offense of conviction . . . increase
the offense level by 2 levels." The district court indisputably and sup-
portably found that Kirk intended to impede the administration of jus-
tice prior to his sentencing. The fact that Harold did not, or even
could not have, contributed anything to the sentencing process is irrel-
evant, because the enhancement applies to attempted, as well as
actual, obstruction. See United States v. Hicks, 948 F.2d 877, 884-85
(4th Cir. 1991); see also United States v. Lagasse, 87 F.3d 18, 24 (1st
Cir. 1996) (enhancement applied where witness intimidated prior to
4 UNITED STATES v. KIRK
sentencing even though he had nothing to contribute to the sentencing
process); United States v. Cotts, 14 F.3d 300, 307-08 (7th Cir. 1994)
(finding enhancement proper where defendant plotted to kill a fic-
tional informant). Thus, the enhancement was properly applied.
Pursuant to Anders, we have reviewed the entire record for merito-
rious appeal issues and found none. Accordingly, we affirm Kirk’s
conviction and sentence. This court requires that counsel inform his
client, in writing, of his right to petition the Supreme Court of the
United States for further review. If the client requests that a petition
be filed, but counsel believes that such a petition would be frivolous,
then counsel may move this court for leave to withdraw from repre-
sentation. Counsel’s motion must state that a copy thereof was served
on the client. 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