United States v. Turner

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5559
KENNETH LEE TURNER,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5907
CHUCKIE DALE WOOD,
Defendant-Appellant.
Appeals from the United States District Court
for the Middle District of North Carolina, at Winston-Salem.
N. Carlton Tilley, Jr., District Judge.
(CR-94-187)
Submitted: January 28, 1997
Decided: February 20, 1997
Before ERVIN, HAMILTON, and WILLIAMS, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Lisa Costner, TISDALE, GRACE, MENEFEE & COSTNER, P.A.,
Winston-Salem, North Carolina; Marcia G. Shein, LAW OFFICE OF
MARCIA G. SHEIN, P.C., Atlanta, Georgia, for Appellants. Walter
C. Holton, Jr., United States Attorney, Paul A. Weinman, Assistant
United States Attorney, Greensboro, North Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
In 1994, a grand jury indicted Chuckie Dale Wood and Kenneth
Lee Turner in a multi-count indictment charging drug conspiracies
and related offenses.1 Pursuant to a plea agreement, Wood pled guilty
to Count One, conspiracy to distribute cocaine and marijuana (21
U.S.C. §§ 841(b)(1)(A), 846 (1994)), Count Two, conspiracy to dis-
tribute cocaine (21 U.S.C. §§ 841(b)(1)(A), 846), and Count Five,
conducting financial transactions affecting interstate commerce with
the proceeds of unlawful activity (18 U.S.C. §§ 2, 1956(a)(1)(B)(i)
(1994)). Turner also pled guilty to Count One, pursuant to a plea
agreement. Wood received a ninety-one-month prison term, and Tur-
ner received a sixty-month prison term. Both men appealed and their
appeals were consolidated. In No. 95-5907, Wood contends that the
district court erred by adjusting his sentence pursuant to United States
Sentencing Commission, Guidelines Manual,§ 5G1.3(b) (Nov.
1994), after calculating his applicable guideline range but before
granting a fifty percent reduction pursuant to U.S.S.G. § 5K1.1. In
Appeal No. 95-5559, Turner alleges that, at sentencing, the district
court improperly held him responsible for five to less than fifteen
kilograms of cocaine. We find no merit to their claims; consequently,
we affirm.
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1 Wood was charged on all counts of the five-count indictment. Turner
was charged only on one count.
2
Appeal No. 95-5907
Determining that Wood had an offense level of 33 and was in
Criminal History Category VI, the district court calculated Wood's
initial guideline range as 235 to 295 months. The court then credited
Wood for fifty-two months he served on a related state conviction2 by
subtracting fifty-two from 235, the bottom of the guideline range,
thereby reducing his sentence to 183 months. The court then reduced
Wood's sentence by fifty percent, pursuant to U.S.S.G. § 5K1.1, for
cooperating with the government, resulting in a final sentence of
ninety-one months.
Wood does not challenge the court's calculation of his initial
Guideline range or the court's decision to grant him a fifty percent
reduction for cooperating with the government and credit for time
served on his state sentence. He claims, however, that the district
court should have applied the fifty percent sentence reduction under
U.S.S.G. § 5K1.1 against the initial 235-month sentence, resulting in
a 117.5 month sentence, and then, pursuant to U.S.S.G. § 5G1.3,
should have adjusted Wood's sentence by granting the fifty-two-
month credit for time served on the state conviction, resulting in a
final sentence of "approximately 65.6 months."
Guideline section 5G1.3(b) provides that when a defendant is serv-
ing an undischarged prison term for an offense that has been taken
into account in determining the defendant's offense level for the
crime for which he currently is being sentenced, his current sentence
should be imposed to run concurrent to the undischarged portion of
the earlier sentence. This guideline section does not apply to Wood's
case, because Wood had already finished serving his sentence for the
state conviction. As Wood was not entitled to a§ 3G1.3 credit, the
fifty-two-month credit he received amounted to a downward depar-
ture, which the government does not contest and that Wood does not
have the right to challenge. United States v. Patterson, 38 F.3d 139,
146 (4th Cir. 1994), cert. denied, #6D6D 6D# U.S. ___, 63 U.S.L.W. 3817_________________________________________________________________
2 Wood served fifty-two months in North Carolina state prison for a
1984 conviction for trafficking cocaine. Wood contends that this convic-
tion was for "conduct essentially comprising Count One of the [f]ederal
indictment."
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(U.S. May 15, 1995) (No. 94-7831). Because he was not entitled to
the fifty-two-month credit, the district court's decision to apply the
fifty-two-month credit before granting the fifty percent sentence
reduction is not reviewable. Consequently, we affirm Wood's sen-
tence.
Appeal No. 95-5559
At Kenneth Lee Turner's sentencing hearing, the government pres-
ented the testimony of co-defendant Terry Smith. Smith testified that
for approximately two years, from 1988 to 1990, Turner bought one
kilogram of cocaine from him every four to five weeks, totalling
approximately eighteen to twenty kilograms of cocaine. Smith admit-
ted that in the past he had lied to law enforcement agents about the
drug activities of other individuals, stating that, out of fear for his
family, he had understated the amounts of drugs they purchased from
him. He also admitted to a prior perjury conviction and lying on his
tax returns. Turner testified that he purchased cocaine only once from
Smith and three times from co-defendant David Crews. Finding
Smith's testimony more credible, the district court found Turner
accountable for five to less than fifteen kilograms of cocaine for sen-
tencing purposes. On appeal, Turner contends that the district court
erred by finding Smith's testimony more credible than Turner's and
relying on Smith's testimony in determining the amount of drugs for
which Turner was accountable. Generally, the credibility of witnesses
is within the sole province of the fact finder and is not susceptible to
review. Cf. United States v. Saunders, 886 F.2d 56, 60 (4th Cir. 1989)
(applying this standard to credibility determination by jury). A trial
court's factual findings at sentencing are reviewed for clear error.
United States v. D'Anjou, 16 F.3d 604, 614 (4th Cir. 1994). In finding
Smith's testimony more credible than Turner's testimony, the court
noted that Smith's earlier false statements had always been under-
statements of others' illegal drug activities. Moreover, the court noted
that aspects of Turner's testimony were inherently unbelievable. We
find that the district court carefully considered both witnesses' testi-
mony and did not clearly err by relying on Smith's testimony to deter-
mine that Turner was accountable for sentencing purposes for five to
less than fifteen kilograms of cocaine.
For these reasons, in Appeal No. 95-5907, we affirm Wood's sen-
tence and in Appeal No. 95-5559, we affirm Turner's sentence. We
4
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
No. 95-5907 - AFFIRMED
No. 95-5559 - AFFIRMED
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