United States v. Powell ( 2007 )

Vacated by Supreme Court, filed January 7, 2008
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4142
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MARVIN WILBERT POWELL,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (5:04-cr-356-F)
Submitted: April 18, 2007 Decided: May 7, 2007
Before WILKINS, Chief Judge, and WILKINSON and NIEMEYER, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
Susan L. Ferguson, CRIMINAL DEFENSE ASSOCIATES, Woodland Hills,
California, for Appellant. George E. B. Holding, United States
Attorney, Anne M. Hayes, Jennifer P. May-Parker, Assistant United
States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Marvin Powell was convicted on five counts charging him with
(1) possession with intent to distribute 50 grams or more of crack
cocaine and an unspecified amount of cocaine powder; (2)
conspiracy to possess with intent to distribute 50 grams or more
of crack cocaine and an unspecified amount of cocaine powder; (3)
possession with intent to distribute marijuana; (4) using,
carrying, or possessing a firearm during a drug trafficking crime;
and (5) possession of a firearm by a felon. Based on drug
quantities detailed in the presentence report, the Sentencing
Guidelines recommended a sentence for each of Counts 1 and 2 in
the range of 292 to 365 months’ imprisonment. The Sentencing
Guidelines also recommended a sentence of 60 months’ imprisonment
on Count 3; a mandatory consecutive sentence of 60 months on Count
4; and a sentence of 120 months on Count 5. The district court
grouped the sentences on Counts 1 and 2, and, at the request of
the government, imposed a variance sentence of 240 months’
imprisonment for those counts. It also imposed a 60 month
consecutive sentence for the conviction on Count 4, for a total of
300 months’ imprisonment. It imposed the sentences recommended in
the presentence report on Counts 3 and 5, to run concurrently with
the sentences imposed on Counts 1, 2, and 4.
Powell challenges his 300-month total sentence, contending
that (1) the district court’s finding of drug quantities was
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unsupported by the evidence, and (2) the Sentencing Guidelines’
100 to 1 ratio of punishment for crack cocaine and cocaine powder
is unreasonable. Finding no error, we affirm.
The presentence report recommended finding that the
conspiracy involved 18.4034 kilograms of crack cocaine, 21.09
kilograms of cocaine powder, and 3.7755 kilograms of marijuana.
The district court adopted these recommendations as findings,
concluding that these quantities were supported by the evidence at
trial. We readily conclude that the district court’s findings
were not clearly erroneous.
First, pursuant to a search warrant, police seized from
Powell’s residence 126 grams of crack cocaine, 239.3 grams of
cocaine powder, and 1053.9 grams of marijuana. In addition,
Powell’s co-conspirator testified at trial that after some
preliminary dealings with Powell involving, conservatively, 12
ounces of cocaine powder and 4 ounces of crack cocaine and then
later 250 grams of cocaine powder and 250 of crack cocaine, Powell
began dealing in large quantities of both crack cocaine and
cocaine powder. He testified that Powell received “at least” one
kilogram of cocaine each week during the period from August 2002
until May 2003, and each week he cooked from one-half kilogram to
one kilogram into crack. This evidence amply supports the
district court’s finding of drug quantities. Moreover, we note
that the court’s finding that the conspiracy involved 18.4
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kilograms of crack cocaine is more than ten times the amount (1.5
kilograms of crack) required to support the 292-365 month
sentencing range recommended by the presentence report. And this
does not even take into account the cocaine powder and marijuana
involved in the conspiracy.
In addition, the district court imposed a variance sentence
on Counts 1 and 2 that was substantially lower than the bottom of
the recommended range -- over 50 months lower. This was generous
to Powell in view of the large quantities of drugs involved.
We reject Powell’s challenge of the 100 to 1 ratio of
punishment provided in the Sentencing Guidelines for crack cocaine
and cocaine powder, based on our previous, controlling authority.
See United States v. Eura, 440 F.3d 625, 633-34 (4th Cir. 2006).*
Accordingly, the sentence of the district court is
AFFIRMED.
*
Powell filed a motion to supplement the record to demonstrate
that he had raised this issue below, preserving it for appeal. We
grant that motion.
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