United States v. Bradley ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4170
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
HOWARD GENE BRADLEY,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley. David A. Faber, Chief
District Judge. (CR-04-103)
Submitted: August 29, 2005 Decided: April 18, 2006
Before NIEMEYER, MOTZ, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Derrick W. Lefler, GIBSON, LEFLER & ASSOCIATES, Princeton, West
Virginia, for Appellant. Kasey Warner, United States Attorney, W.
Chad Noel, Assistant United States Attorney, Charleston, West
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Howard Gene Bradley appeals his seventy-eight month
prison sentence imposed following a guilty plea to distributing a
controlled substance in violation of 21 U.S.C. § 841(a)(1) (2000).
Finding no error, we affirm Bradley’s sentence.
Bradley was sentenced the day after United States v.
Booker, 543 U.S. 220 (2005), issued. At sentencing, the district
court acknowledged the holding in Booker and sentenced Bradley
under an advisory guidelines scheme. Bradley preserved error under
Booker for appellate review. On appeal, Bradley argues the
district court’s application of Booker at sentencing disadvantaged
him in violation of the Ex Post Facto and Due Process Clauses of
the Constitution. He also argues the district court clearly erred
in determining the drug quantity attributable to him as relevant
conduct under the Guidelines.
We find the concepts inherent in the Ex Post Facto Clause
and the Due Process Clause were satisfied in Bradley’s case.
Accordingly, the district court’s application of Booker’s remedial
holding to Bradley’s sentence, even though Bradley’s offense
conduct preceded issuance of the Booker opinion, did not implicate
the Ex Post Facto or Due Process Clauses. See United States v.
Dupas, 419 F.3d 916, 919-22 (9th Cir. 2005); United States v.
Jamison, 416 F.3d 538, 538 (7th Cir. 2005); United States v.
Scroggins, 411 F.3d 572 (5th Cir. 2005); United States v. Duncan,
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400 F.3d 1297, 1306-08 (11th Cir.), cert. denied, 126 S. Ct. 432(2005).
The district court’s finding of drug quantity attributed
to Bradley for sentencing purposes was largely based upon a
credibility determination of a witness who testified as to drug
buys he made from Bradley. This court reviews the district court’s
factual findings to apply sentencing enhancements for clear error.
See United States v. Sayles, 296 F.3d 219, 224 (4th Cir. 2002);
United States v. McAllister, 272 F.3d 228, 234 (4th Cir. 2001).
Further, this court gives due regard to the district court’s
opportunity to judge the credibility of witnesses and does not
review credibility determinations. See United States v. Lowe, 65
F.3d 1137, 1142 (4th Cir. 1995). Witness credibility
determinations by the fact finder are rarely disturbed on appeal.
United States v. Saunders, 886 F.2d 56, 60 (4th Cir. 1989). We
will not disturb the district court’s credibility finding in this
case. We find the district court did not clearly err in
determining the drug quantity attributable to Bradley for
sentencing purposes under the advisory guidelines.
We also note that the judicial fact finding of drug
quantities used to enhance Bradley’s sentence under the advisory
guidelines calculation does not implicate Apprendi. See
Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) (“Other than the
fact of a prior conviction, any fact that increases the penalty for
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a crime beyond the prescribed statutory maximum must be submitted
to a jury, and proved beyond a reasonable doubt.”). The statutory
maximum sentence was twenty years, and Bradley’s sentence of
seventy-eight months is well below the maximum.
Accordingly, we affirm Bradley’s sentence. 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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