United States v. Thinley , 239 F. App'x 5 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4980
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TENZIN THINLEY,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Deborah K. Chasanow, District Judge.
(8:05-cr-00389-DKC)
Submitted: June 20, 2007 Decided: July 11, 2007
Before GREGORY and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Michael E. Lawlor, LAWLOR & ENGLERT, LLC, Greenbelt, Maryland, for
Appellant. Rod J. Rosenstein, United States Attorney, Barbara S.
Skalla, Assistant United States Attorney, Greenbelt, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Tenzin Thinley was convicted by jury of conspiracy to
possess with intent to distribute 3,4-methylenedioxymethamphetamine
(“MDMA” or “ecstacy”), in violation of 21 U.S.C. § 846 (2000), and
distribution of ecstacy, in violation of 21 U.S.C. § 841 (2000)
(Counts Two and Four). On August 31, 2006, the district court
sentenced Thinley to 51 months in prison. Thinley appealed and
asserts his sentence is unreasonable because the district court
based the sentence upon an incorrect finding of drug quantity.
Finding no error, we affirm.
Thinley contends that the district court erred at
sentencing when it found that at least 1100 pills were attributable
to him during the periods of the conspiracy. In calculating the
guideline range for each co-conspirator, “all reasonably
foreseeable acts and omissions of others in furtherance of the
jointly undertaken criminal activity, that occurred during the
commission of the offense of conviction, in preparation for that
offense, or in the course of attempting to avoid detection or
responsibility for that offense” are to be included. USSG
§ 1B1.3(a)(1)(B). When evaluating the district court’s application
of the sentencing guidelines, this court reviews findings of fact
for clear error. United States v. Green, 436 F.3d 449, 456 (4th
Cir.), cert. denied, 126 S. Ct. 2309 (2006).
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Contrary to Thinley’s assertions, the district court did
not err in finding Thinley was responsible for 518 pills he
delivered to a confidential informant on July 19, 2005, and for
between 100 and 200 pills on each of six to ten other occasions.
First, the district court determined that the testimony of co-
conspirator Alex Le was credible, and credibility determinations
are within the province of the trier of fact and are not reviewable
on appeal. See United States v. Saunders, 886 F.2d 56, 60 (4th
Cir. 1989) (citations omitted). Le testified that he had sold
Thinley 100 to 200 pills on six to ten occasions prior to the July
19, 2005 sale to the informant. This earlier conduct was clearly
relevant and within the scope of the conspiracy. Based upon Le’s
testimony, the district court found Thinley received at least 600
pills from the time Le and Thinley met in February 2005 until the
July 19, 2005 sale to the informant. Added to the 518 sold to the
informant, and not even considering the pills involved in the
August 3, 2005 intended transaction, the court correctly found
Thinley’s involvement easily placed him in the Level 26 range.
The district court thus properly determined the drug
quantity attributable to Thinley. Accordingly, we affirm Thinley’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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