United States v. Nicholas

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 03-4279
JUAN NICHOLAS, a/k/a Scan,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of West Virginia, at Huntington.
Robert C. Chambers, District Judge.
(CR-02-200)
Submitted: July 24, 2003
Decided: August 1, 2003
Before MICHAEL and MOTZ, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
Andrew J. Katz, THE KATZ WORKING FAMILIES LAW FIRM,
L.C., Charleston, West Virginia, for Appellant. Kasey Warner, United
States Attorney, Miller A. Bushong, III, Assistant United States
Attorney, Charleston, West Virginia, for Appellee.
2 UNITED STATES v. NICHOLAS
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Juan Nicholas pled guilty to distribution of cocaine base (crack), 21
U.S.C. § 841 (2000), and was sentenced as a career offender to a term
of 188 months imprisonment. Nicholas appeals his sentence, contend-
ing that the district court clearly erred in determining that he was
responsible for 53.05 grams of crack for sentencing purposes. U.S.
Sentencing Guidelines Manual § 2D1.1 (2002). We affirm.
Nicholas was arrested after he ran a red light while driving on a
suspended license. When Trevia Province, the passenger in the front
seat got out, a three-gram piece of crack was left on the seat behind
her in plain view. At the police station, Province voluntarily turned
over to the police 15.4 grams of crack packaged for sale. She told the
police Nicholas had handed this crack to her and asked her to hide it
when he saw the blue light behind his vehicle. Nicholas’ relevant con-
duct included this amount as well as 34.9 grams of crack recovered
from his vehicle and 2.75 grams of crack Nicholas sold to a confiden-
tial informant eight months earlier, making a total of 53.05 grams of
crack. Nicholas contested the 15.4 grams attributed to him on the
strength of Province’s statement, denying that he gave it to her or
knew she possessed it. Province testified at Nicholas’ sentencing
hearing. Nicholas did not testify. The passenger in the back seat of the
car, Deanna Crawford, had told the police that she did not see Nicho-
las hand anything to Province. Crawford was unavailable to testify.*
The district court found Province’s testimony credible.
The government bears the burden of proving the quantity of drugs
attributable to the defendant, United States v. Lipford, 203 F.3d 259,
272 (4th Cir. 2000), and may do so by means of evidence presented
*Crawford had been questioned by police and released. She was later
murdered; her death was still under investigation.
UNITED STATES v. NICHOLAS 3
at sentencing. United States v. Gilliam, 987 F.2d 1009, 1013 (4th Cir.
1993). Although Nicholas asserts on appeal that Province’s testimony
was not credible in light of Crawford’s statement, the district court
found that Province was credible. Issues of witness credibility are
reserved for the factfinder and are not reviewed by the appeals court.
United States v. Wilson, 118 F.3d 228, 234 (4th Cir. 1997).
We therefore affirm the sentence imposed by the district court. We
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.
AFFIRMED