United States v. Joseph Mann , 629 F. App'x 567 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4148
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JOSEPH EMMANUEL MANN, a/k/a Musa Kofi, a/k/a Mike Mann,
a/k/a Big Mike, a/k/a Cass Musa, a/k/a Knot Musa, a/k/a
Kofi Musa, a/k/a Gilbert S. Batten, a/k/a Joseph Emmanual
Mann,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. T. S. Ellis, III, Senior
District Judge. (1:11-cr-00341-TSE-1)
Submitted: November 30, 2015 Decided: December 9, 2015
Before KING, DUNCAN, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Geremy C. Kamens, Acting Federal Public Defender, Frances H.
Pratt, Kevin R. Brehm, Assistant Federal Public Defenders,
Alexandria, Virginia, for Appellant. Dana J. Boente, United
States Attorney, Carina A. Cuellar, Christopher Catizone,
Assistant United States Attorneys, Alexandria, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Joseph Emmanuel Mann appeals the 108-month sentence imposed
at his resentencing for conspiracy to distribute oxycodone.
Mann contends that the district court erred in determining the
quantity of drugs attributable to him. We affirm.
I
At Mann’s original sentencing, the district court found
that Mann was responsible for an amount of oxycodone with a
marijuana equivalency of at least 3,000 kilograms but less than
10,000 kilograms, resulting in a base offense level of 34. See
U.S. Sentencing Guidelines Manual § 2D1.1(c)(3) (2011). Mann
was in criminal history category I, and his Guidelines range was
151-188 months. The district court imposed a sentence of 108
months’ imprisonment, varying downward to avoid sentencing
disparity among co-conspirators and because of Mann’s health
issues. On appeal, Mann’s attorney filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967). We affirmed. United
States v. Mann, 494 F. App’x 389 (4th Cir. Oct. 3, 2012) (No.
12-4103).
Mann then filed a 28 U.S.C. § 2255 (2012) motion. Among
other issues, he contended that counsel was ineffective at
sentencing for failing to object to the calculation of drug
quantity on the basis of United States v. Bell, 667 F.3d 431
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(4th Cir. 2011). The district court granted the motion with
respect to this issue and ordered resentencing.
In its memorandum on resentencing, the government asserted
that the trial testimony of two witnesses, Christopher Martino
and James Post, established that Mann was responsible for 11,266
80-milligram oxycodone pills, for a marijuana equivalency of
6,038.576 kilograms. This amount placed Mann in base offense
level 34 under the 2011 version of the Guidelines and base
offense level 32 under the 2014 version. See USSG
§§ 2D1.1(c)(3) (2011), 2D1.1(c)(4) (2014). In his memorandum,
Mann claimed he was responsible for 6,946 pills but conceded
that, even using this lower number, the marijuana equivalency
remained the same — at least 3,000 kilograms but less than
10,000 kilograms. He agreed with the Government that his base
offense level would be 34 under the 2011 version of the
Guidelines and 32 under the 2014 version.
At the resentencing hearing, the Government stated that,
although the parties disagreed about the exact number of
oxycodone pills Mann had distributed, they agreed that he had
distributed a quantity of oxycodone with a marijuana equivalency
of at least 3,000 kilograms but less than 10,000 kilograms.
Mann did not object to this statement, nor did he seek a ruling
on the precise number of pills for which he was responsible.
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The district court determined that Mann was accountable for
oxycodone with a marijuana equivalency of 6,038 kilograms,
resulting in base offense level 32 under the 2014 Guidelines.
The court stated that its finding regarding drug quantity was
based on the trial testimony of Martino and Post concerning the
amount of oxycodone Mann actually distributed to them. The
court departed below the Guidelines range of 121-151 months and
again sentenced Mann to 108 months in prison.
II
Mann claims that the district court erred in calculating
the quantity of drugs for which he was responsible.
Specifically, he contends for the first time on appeal that he
distributed only 5,293 oxycodone pills, for a marijuana
equivalency that results in a base offense level of 30 under the
2014 Guidelines. We conclude that, by conceding in his
resentencing memorandum and at the resentencing hearing that he
was responsible for an amount of oxycodone with a marijuana
equivalency of at least 3,000 kilograms but less than 10,000
kilograms, Mann invited any error and waived his right to raise
this claim on appeal. See United States v. Hickman, 626 F.3d
756, 772 (4th Cir. 2010); United States v. Herrera, 23 F.3d 74,
75 (4th Cir. 1994).
Even if the issue is not waived, however, we conclude that
the district court did not commit any error, much less plain
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error, in its determination of drug quantity. First, the court
used the proper methodology sanctioned in Bell to determine drug
quantity. See Bell, 667 F.3d at 443 (when drug in question was
obtained by conspirator through a prescription, court may base
determination of drug quantity on amount of drugs “actually
distributed”). Second, in concluding that Mann distributed at
least 11,000 oxycodone pills, the court found the testimony of
Martino, who testified that Mann distributed 9,600 pills to him
directly or indirectly, and Post, who testified that he bought
$50,000 worth of oxycodone pills from Mann at $30 per pill, to
be credible. We accord this credibility determination great
deference. See United States v. Thompson, 554 F.3d 450, 452
(4th Cir. 2009).
III
We therefore affirm. 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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