United States v. Bryant ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4616
ROGER B. BRYANT,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4626
KARL DAVID VIARS,
Defendant-Appellant.
Appeals from the United States District Court
for the Northern District of West Virginia, at Clarksburg.
Irene M. Keeley, District Judge.
(CR-95-30)
Submitted: February 17, 1998
Decided: March 17, 1998
Before WILKINS and MICHAEL, Circuit Judges, and
HALL, Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Arthur T. Ciccarello, Sr., CICCARELLO & DEL GIUDICE, Charles-
ton, West Virginia; Thomas G. Dyer, DYER LAW OFFICES, Clarks-
burg, West Virginia, for Appellants. William D. Wilmoth, United
States Attorney, Sam G. Nazzaro, Assistant United States Attorney,
Wheeling, West Virginia, 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Unpublished opinions are not binding precedent in this circuit.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:
Appellants Roger Bryant and Karl David Viars entered guilty pleas
to conspiracy to manufacture and possess with intent to distribute and
to distribute marijuana, in violation of 21 U.S.C.§ 846 (1994), and
manufacturing marijuana plants, in violation of 21 U.S.C. § 841(a)(1)
(1994). Bryant and Viars were each sentenced to terms of 120 months
imprisonment followed by five years supervised release. Both appeal
their sentences on the ground that the district court failed to properly
determine the number of marijuana plants attributable to them. Hav-
ing previously granted Appellants' unopposed motion to waive oral
argument, we now affirm.
At the joint sentencing hearing, the district court found that Viars
was involved with only three of the five marijuana fields identified in
the indictment: the upper Wildcat field, the lower Wildcat field, and
the eastern Wildcat field. The court further found that Bryant was
involved with all five of the marijuana fields: the three Wildcat fields,
as well as the Kanawha River tract and the Painter's Run tract.1
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1 Although not listed as issues as required by Fed. R. App. P. 28, Bry-
ant appears to argue in the joint opening brief that he should not have
been held responsible for the marijuana in the eastern Wildcat, Kanawha
2
At the sentencing hearing, there was conflicting testimony from
Government and defense witnesses regarding the number of mari-
juana plants to be attributed to Appellants for purposes of determining
relevant conduct. Utilizing the measurements of the fields, the num-
ber of rows of plants, and the distance between plants, the district
court devised a formula for calculating the number of plants in each
of the five separate fields.2 In calculating the number of plants, the
court assumed that the marijuana was planted every twelve inches.3
These calculations, for all tracts except the eastern Wildcat tract,
resulted in a plant count substantially less than the Government's
count and, in each case, was substantially more than Appellants'
count. However, the district court calculated 333 plants in the eastern
Wildcat field, as opposed to the Government's count of 284. Because
the Government's count was more beneficial to Appellants, the court
ultimately found that the eastern field contained 284 plants. Appel-
lants accept the calculations of the upper and lower Wildcat fields, as
well as the Kanawha River and Painter's Run tracts. They argue,
however, that the formula was inapplicable to the eastern Wildcat
field, which in contrast to the other Wildcat fields, was not cleared,
contained no fencing or identifiable rows or plants, and was not
tended or manicured in a similar manner.
The sentencing court must find the quantity of drugs used to com-
pute a base offense level by a preponderance of the evidence. United
States v. Johnson, 54 F.3d 1150, 1156 (4th Cir. 1995). We review the
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River, or Painter's Run tracts. However, in the joint reply brief, Appel-
lants note that "[t]his appeal has nothing to do with which fields the
appellants should have been held accountable . . . those matters have all
been clearly conceded by the appellants." Therefore, we will not consider
these issues.
2 There was no objection to the measurements of the fields or the num-
ber of rows of plants in each field, with the exception of how many rows
the eastern Wildcat field contained. After hearing evidence, the district
court adopted the probation officer's estimate of nine rows of plants in
this field.
3 The Government's estimate was that the marijuana was planted every
two to three inches. Appellants' evidence supported the conclusion that
the plants were eighteen inches to two feet apart.
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court's factual finding under the "clearly erroneous" standard. United
States v. D'Anjou, 16 F.3d 604, 614 (4th Cir. 1994). We will reverse
only if we are left with the "definite and firm conviction that a mis-
take has been committed." See United States v. Gypsum, 333 U.S.
364, 395 (1948). We also note that estimates of drug quantity are
acceptable so long as they are based on information that has a "suffi-
cient indicia of reliability." United States v. Uwaeme, 975 F.2d 1016,
1021 (4th Cir. 1992).
The Government's evidence that the eastern field contained 284
plants was based on a Government agent's actual count of the plants
in the field in mid-August 1995. The agent also testified that the
plants were, thereafter, eradicated and burned. Appellants countered
with testimony by a private investigator that he counted the marijuana
rootballs in the eastern Wildcat field in the Spring of 1996 (after the
plants themselves had been destroyed) and arrived at a count of only
23. This was the only evidence presented by Appellants regarding the
quantity of plants in the eastern field, and this testimony was explic-
itly found by the district court to not be credible. (J.A. at 368) (sen-
tencing court states that it was "singularly unimpressed" by the
investigator's testimony that there were only 23 plants). Because the
district court is better situated to evaluate matters of credibility, we
will not review this determination. See D'Anjou , 16 F.3d at 614.
Appellants also point out that the Government agent inappropri-
ately counted stems as separate plants, when they were actually part
of the same rootball and, therefore, should have been counted as a sin-
gle plant. However, Appellants fail to note that the district court's for-
mula took this fact into account. While the court found the
Government's estimate to be "aggressive" (based on the double count-
ing), it found Appellants' estimate to be "far to[sic] conservative."
(J.A. at 365). Therefore, the court attempted to split the difference in
fashioning a formula. While it stands to reason that this manner of
estimation would be more beneficial to Appellants in certain fields
than others, we cannot find this method to be clearly erroneous. See
United States v. Shewmaker, 936 F.2d 1124, 1130 (10th Cir. 1991)
(holding that the better practice is to use consistent methods for esti-
mating quantity even where the fields bear different characteristics).
We find that the district court's application of a single formula to all
the fields rendered inconsistencies as to a single field irrelevant. We,
4
therefore, hold that the district court adopted a consistent and reason-
able method for estimating the quantity of plants in all the fields.
After reviewing the record, including the testimony at the trial and
the sentencing hearing, we are not left with a definite and firm con-
viction that a mistake has been made. On the contrary, we find that
the district court could deem its formula and the Government's actual
count of marijuana plants as sufficiently reliable to make a preponder-
ance finding. Accordingly, we affirm the sentences imposed by the
district court.
AFFIRMED
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