United States v. Munson , 299 F. App'x 297 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4284
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAMES EDGAR MUNSON,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Richard L. Voorhees,
District Judge. (3:01-cr-00066-2)
Submitted: September 29, 2008 Decided: November 13, 2008
Before NIEMEYER, MOTZ, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Noell Tin, TIN FULTON GREENE & OWEN, PLLC, Charlotte, North
Carolina, for Appellant. Gretchen C. F. Shappert, United States
Attorney, Adam Morris, Assistant United States Attorney, Charlotte,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
This appeal is before the court following vacation of
James Edgar Munson’s original sentence and remand to the district
court for resentencing. On appeal, Munson argues that the
eighty-seven-month sentence imposed on remand violates the Sixth
Amendment; the district court clearly erred in calculating drug
quantity; and the court improperly applied the appellate
presumption of reasonableness to a sentence within the sentencing
guidelines. We affirm.
Between 1997 and 1999, Munson was involved in a drug
trafficking scheme transporting marijuana from California to the
Charlotte, North Carolina area. A federal grand jury in Charlotte
charged Munson and several codefendants with conspiring to
distribute over 1000 kilograms of marijuana, in violation of 21
U.S.C.A. §§ 841, 846 (West 1999 & Supp. 2008), and with conspiracy
to launder money, in violation of 18 U.S.C.A. § 1956(h) (West Supp.
2008).1
Following a jury trial, Munson was convicted of both
charges. The jury’s verdict did not assign a drug amount
attributable to Munson, but found beyond a reasonable doubt that
the conspiracy as a whole involved at least 1000 kilograms of
marijuana.
1
The indictment also charged the defendants with conspiring to
distribute cocaine and crack cocaine, but the court granted a
motion of acquittal on the cocaine charges.
2
In the presentence report (“PSR”) prepared for
sentencing, the probation officer determined that Munson was
responsible for at least 1000 kilograms of marijuana, resulting in
a base offense level (and with no adjustments, a total offense
level) of thirty-two on the drug conspiracy count. See U.S.
Sentencing Guidelines Manual (“USSG”) § 2D1.1(c)(4) (1998). On the
money laundering conspiracy count, Munson’s adjusted base level was
twenty-six. USSG § 2S1.1. According to grouping rules, the higher
offense level of thirty-two controlled. USSG § 3D1.3. This
offense level, together with a criminal history category of I,
yielded an advisory guidelines range of 121 to 151 months. USSG
Ch. 5, Pt. A (sentencing table).
At sentencing, Munson objected to the drug quantity
attributed to him. The district judge found that “abundant”
evidence supported the determination that at least 1000 kilograms
of marijuana was “reasonably foreseeable” and attributable to
Munson. Munson was sentenced to concurrent 121-month terms.
Munson appealed, arguing that he was sentenced in
violation of United States v. Collins, 415 F.3d 304, 311-15 (4th
Cir. 2005), because the jury failed to determine the specific
amount of drugs attributable to him for purposes of setting a
threshold quantity under § 841(b). We agreed, vacated Munson’s
sentence, and remanded for resentencing, without addressing
Munson’s other arguments regarding the calculation of drug
3
quantity. See United States v. Munson, 181 F. App’x 368 (4th Cir.
2006) (Nos. 04-4288, 04-5015).
At resentencing, Munson argued that his sentence could
not exceed sixty months, the statutory maximum penalty for the drug
conspiracy count. See 21 U.S.C.A. § 841(b)(1)(D). The district
court rejected Munson’s argument, concluding that the guidelines
range remained 121 to 151 months and the statutory maximum of 240
months for the money laundering count would allow imposition of a
sentence within that range.2
Munson requested a variance sentence, and the district
court granted the request. The court reduced Munson’s offense
level by three levels, resulting in a guidelines range of 87 to 108
months. The court sentenced Munson to eighty-seven months on the
money laundering conspiracy count, the bottom of the recalculated
range, and a concurrent term of sixty months on the drug conspiracy
count.
As he argued below, Munson contends on appeal that his
eighty-seven-month sentence exceeds the maximum punishment
authorized by statute for his § 841 conviction and that the court
improperly relied on judicial fact-finding to determine drug
quantity and exceed the statutory maximum penalty. Munson’s
argument fails to recognize that he was sentenced for multiple
2
The PSR prepared for Munson’s initial sentencing was also
used for his resentencing.
4
counts, each carrying a separate statutory maximum penalty.
According to guidelines grouping rules, Munson’s total offense
level of thirty-two prevailed for both counts and resulted in a
single guidelines range of 121 to 151 months. The imposition of
Munson’s sentence was governed by USSG § 5G1.2, which sets forth
the procedure for sentencing on multiple counts of conviction.
According to USSG § 5G1.2(b), “[e]xcept [in cases not applicable
here], the sentence imposed on each other count shall be the total
punishment” as determined in accordance with Part D of Chapter
Three (grouping rules for offense level determination) and Part C
of Chapter Five (Determining the Sentence). “If the sentence
imposed on the count carrying the highest statutory maximum penalty
is adequate to achieve the total punishment, then the sentences on
all counts shall run concurrently, except to the extent otherwise
required by law.” USSG § 5G1.2(c). The commentary to § 5G1.2
further explains:
Usually, at least one of the counts will have a statutory
maximum adequate to permit imposition of the total
punishment as the sentence on that count. The sentence
on each of the other counts will then be set at the
lesser of the total punishment and the applicable
statutory maximum, and be made to run concurrently with
all or part of the longest sentence. If no count carries
an adequate statutory maximum, consecutive sentences are
to be imposed to the extent necessary to achieve the
total punishment.
USSG § 5G1.2 cmt. Munson was sentenced in accordance with this
provision. The total punishment (eighty-seven months) was imposed
on the money laundering conspiracy count, which carried the higher
5
statutory maximum of twenty years (240 months). On the drug
conspiracy count, the court imposed the statutory maximum term
(sixty months), to run concurrently.
Munson’s reliance on Cunningham v. California, 549 U.S.
270 (2007), is likewise unavailing. In Cunningham, the Court
applied “Apprendi’s bright-line rule: Except for a prior
conviction, ‘any fact that increases the penalty for a crime beyond
the prescribed statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt.’” Cunningham, 549 U.S. at __,
127 S. Ct. at 868 (quoting Apprendi v. New Jersey, 530 U.S. 466,
490 (2000)). Here, the district court’s determination regarding
drug quantity did not increase Munson’s sentence above the
statutory maximum. Thus, no Sixth Amendment violation occurred.
Alternatively, Munson contends that the district court
clearly erred in determining that at least 1000 kilograms of
marijuana was attributable to him. This court reviews drug
quantity determinations for clear error. United States v.
Fullilove, 388 F.3d 104, 106 (4th Cir. 2004). This deferential
standard of review requires reversal only if this court, upon
reviewing the record as a whole, “is left with the definite and
firm conviction that a mistake has been committed.” Easley v.
Cromartie, 532 U.S. 234, 242 (2001) (internal quotation marks and
citation omitted).
6
Munson contends that he was responsible for only 1235
pounds (560.196 kilograms) of marijuana. Munson’s argument, raised
in detail at his resentencing hearing, hinges on his interpretation
of a Government exhibit detailing Western Union wire transfers. He
claims that certain transactions in this exhibit should have been
deducted from the total dollar amount, and he divides the reduced
dollar amount by an average price per pound.3
We conclude the district court did not clearly err in
attributing at least 1000 kilograms of marijuana to Munson.
Munson’s own testimony is the primary evidence supporting his
interpretation of the document and his attack on a single exhibit
ignores all the other sources of information. As the district
court concluded at the first sentencing hearing, there was
“abundant” evidence that over 1000 kilograms of marijuana was
reasonably foreseeable.
Moreover, as the Government points out, any error is
harmless. Using Munson’s quantity calculation of 560 kilograms
results in an offense level of twenty-eight under the 1998 version
of the guidelines used in this case, and an advisory guidelines
range of seventy-eight to ninety-seven months. Munson’s
eighty-seven-month sentence is solidly within that range.4
3
Munson uses a higher average price per pound than that used
by the Government’s expert.
4
Munson does not suggest that, because the court granted a
variance, it is likely that his sentence would have been even lower
7
Finally, Munson contends that the district court applied
the guidelines in a mandatory fashion because in its discussion of
the sentencing factors under 18 U.S.C.A. § 3553(a) (West 2000 &
Supp. 2008), the court referred to the “reasonableness inherent in
the guideline calculation.” This argument wholly removes this
statement from its context as part of the court’s consideration and
imposition of a variance sentence. The record simply provides no
support for the assertion that the court improperly treated the
guidelines as presumptively reasonable. See Rita v. United States,
127 S. Ct. 2456, 2465 (2007) (“[T]he sentencing court does not
enjoy the benefit of a legal presumption that the [g]uidelines
sentence should apply.”).
Accordingly, we affirm Munson’s sentence. We deny
Munson’s pending motions to expedite, for bail pending appeal, and
to strike portions of the Government’s brief, but we grant Munson’s
motion to file a pro se supplemental brief.5 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
if the court had accepted his calculation and based its guidelines
calculation on his lower drug quantity figure. In any event, the
district court’s remarks at sentencing weigh against such an
argument.
5
We have considered the issues Munson raises therein, and find
them to be without merit.
8