United States v. Smith , 216 F. App'x 362 ( 2007 )


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  •                             UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 06-4730
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    versus
    DARYL W. SMITH, a/k/a D-Nice,
    Defendant - Appellant.
    Appeal from the United States District Court for the Northern
    District of West Virginia, at Clarksburg. Frederick P. Stamp, Jr.,
    District Judge. (1:03-cr-00039-FPS)
    Submitted:   December 20, 2006            Decided:   February 6, 2007
    Before NIEMEYER, KING, and DUNCAN, Circuit Judges.
    Affirmed by unpublished per curiam opinion.
    L. Richard Walker, Assistant Federal Public Defender, Clarksburg,
    West Virginia, for Appellant. Thomas E. Johnston, United States
    Attorney, John C. Parr, Assistant United States Attorney, Wheeling,
    West Virginia, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    Daryl W. Smith was convicted in 2003 of conspiracy to
    distribute more than fifty grams of cocaine base (crack) (Count 1),
    aiding and abetting the distribution of crack within 1000 feet of
    a playground (Count 29), and distribution of more than five grams
    of crack (Count 30).        He was sentenced to a term of 360 months
    imprisonment.      We affirmed Smith’s convictions, but remanded his
    case for resentencing in light of United States v. Booker, 
    543 U.S. 220
     (2005).     United States v. Smith, 138 F. App’x 557 (4th Cir.
    2005) (No. 04-4420).      On remand, the district court reimposed the
    same sentence.     Smith appeals his sentence, contending that it is
    unreasonable because (1) the district court’s finding concerning
    the quantity of crack attributable to him was based on co-defendant
    Vernon Maxwell’s trial testimony, which Smith claims was not
    credible; (2) the court refused to consider as grounds for a
    variance the dismissal of a juror during his trial; and (3) the
    court   declined    to   impose   a   variance   sentence   to   correct   the
    disparity between Smith’s sentence and the sentences of his co-
    defendants.   We affirm.
    Initially, Smith and nine co-defendants were charged with
    conspiring to sell drugs in Clarksburg, West Virginia, near the
    Monticello Avenue Playground and a bar called the Vet’s Club.              All
    but Smith pled guilty.            At Smith’s trial, numerous witnesses
    identified him as their supplier.             At his sentencing, Smith was
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    held responsible for 507.3 grams of crack, which resulted from the
    seizure of 11.2 grams of crack from the pocket of Smith’s shorts
    during a search warrant executed at his home on July 9, 2003, and
    the trial testimony of the following witnesses who said they bought
    crack from Smith:   Sammy Lockett (3.75 grams); Vernon Maxwell (375
    grams); Kelli Freeman (105 grams); Henry Freeman (5 grams); Kevin
    Hill (3 grams); Truman White (.6 grams); and Derrick Savage (3.75
    grams).
    Maxwell testified at trial that, from the fall of 2002
    until the day he was arrested (July 9, 2003), he bought crack from
    Smith “about 1,000 times.”   However, when Maxwell was interviewed
    by the prosecutor before trial, he proffered as part of his plea
    agreement that he bought crack from Smith about fifty times. Later
    Maxwell testified before the grand jury that he bought crack from
    Smith “about a dozen” times.     When Smith’s attorney confronted
    Maxwell at trial with his prior statement to the grand jury,
    Maxwell testified that he had misspoken, and should have said he
    bought from Smith a dozen times a day.   Although he was pressed on
    this point and on his testimony as to how many times he saw Smith
    with at least a quarter of an ounce of crack,1 Maxwell maintained
    that he had not lied in his grand jury testimony, but had answered
    quickly, without sufficient thought.   At both sentencing hearings,
    1
    In his grand jury testimony, Maxwell said he saw Smith with
    this amount five or six times; under cross-examination at trial, he
    said over a hundred times.
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    the district court decided that Maxwell’s trial testimony was
    credible, despite his inconsistent prior statements.
    On appeal, Smith first challenges the district court’s
    decision to credit Maxwell’s trial testimony with respect to drug
    quantity.   We will affirm a post-Booker sentence if it “is within
    the statutorily prescribed range and is reasonable.” United States
    v. Hughes, 
    401 F.3d 540
    , 547 (4th Cir. 2005) (internal quotation
    marks and citation omitted).       “[A] sentence within the proper
    advisory Guidelines range is presumptively reasonable.”      United
    States v. Johnson, 
    445 F.3d 339
    , 341 (4th Cir. 2006) (citations
    omitted). When imposing a sentence after Booker, courts must still
    calculate the applicable advisory guideline range after making the
    appropriate findings of fact and consider the range in conjunction
    with other relevant factors under the guidelines and 
    18 U.S.C.A. § 3553
    (a) (West 2000 & Supp. 2006).       Hughes, 
    401 F.3d at 546
    ;
    United States v. Moreland, 
    437 F.3d 424
    , 432 (4th Cir.), cert.
    denied, 
    126 S. Ct. 2054
     (2006).    The government has the burden of
    proving by a preponderance of the evidence the quantity of drugs
    attributable to the defendant.    United States v. Lipford, 
    203 F.3d 259
    , 272 (4th Cir. 2000).    The district court’s factual finding
    concerning drug quantity is reviewed for clear error.2   
    Id. at 271
    .
    2
    In his initial appeal, Smith challenged the district court’s
    finding that he was responsible for 507.3 grams of crack for
    sentencing purposes. We remanded the case without addressing the
    issue on the merits.    Because we did not decide the issue, the
    district court was not foreclosed by the mandate rule from
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    Smith      concedes    that    the     district    court’s      decision
    concerning the drug quantity was based on its determination of the
    credibility           of    Maxwell’s     testimony       and     that     credibility
    determinations are within the province of the factfinder.                            See
    United States v. Williams, 
    977 F.2d 866
    , 870 (4th Cir. 1992)
    (reviewing        relevant      conduct       determination       based    on    witness
    testimony “with due deference to the trial court’s opportunity to
    assess credibility”). However, Smith contends that Maxwell’s trial
    testimony diverged so dramatically from his earlier statements that
    the district court clearly erred in accepting it.                         We disagree.
    The district court had the opportunity to hear and observe Maxwell
    as he testified, and was able to assess his credibility.                           As a
    result of the vigorous cross-examination conducted by Smith’s
    attorney, the court was well aware of the inconsistencies in
    Maxwell’s pre-trial statements.                 We are satisfied that the court
    did       not   err   in    deciding    that    Maxwell’s    trial    testimony     was
    credible. Having made that decision, the court did not clearly err
    in determining that Smith was responsible for more than 500 grams
    of crack and that a base offense level of 32 applied.
    Next, Smith argues that the district court erred by
    failing to consider a variance based on the dismissal of a juror.
    In    a    post-Booker       sentencing,       after   the   court   calculates      the
    revisiting the issue at the resentencing hearing, and Smith is not
    foreclosed from raising it in this appeal. United States v. Bell,
    
    5 F.3d 64
    , 66 (4th Cir. 1993).
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    advisory guideline range, it must then consider whether that range
    “serves the factors set forth in § 3553(a) and, if not, select a
    sentence that does serve those factors.”          United States v. Green,
    
    436 F.3d 449
    , 456 (4th Cir.), cert. denied, 
    126 S. Ct. 2309
     (2006).
    In selecting a sentence that serves the § 3553(a) factors, “the
    district   court   should   first    look   to   whether   a   departure   is
    appropriate based on the Guidelines Manual or relevant case law.”
    Moreland, 
    437 F.3d at 432
    .     If the resulting departure range does
    not address the court’s concerns, the district court may impose a
    variance sentence.    
    Id.
    Here, the district court sentenced Smith to the bottom of
    the advisory guideline range after considering defense counsel’s
    argument for a variance based on, among other factors, Smith’s
    conviction by eleven jurors.        Smith contends that the court erred
    in deciding that the dismissal of a juror was not an appropriate
    ground for a variance.       He contends that the dismissal of the
    twelfth juror made his case highly unusual in that he was deprived
    at trial of “the possibility that a fair and impartial twelfth
    juror may have disagreed with the other jurors and voted for
    acquittal on all counts.”3
    3
    The juror was dismissed because he disclosed during jury
    consultations that he knew of Smith some years earlier and stated
    that Smith was always in trouble or, as reported by the jury
    foreman and other jurors, stated that Smith “was a punk then and
    still is a punk.”
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    We conclude that Smith has not shown that the court’s
    refusal to vary from the guideline range rendered his sentence
    unreasonable.    In Smith’s first appeal, we found no error in his
    conviction by eleven jurors.          Moreover, the fact of a juror’s
    dismissal has no relation to the nature of the offense or the
    history and characteristics of the defendant--the factors which are
    the focus of § 3553(a).        See United States v. Martinez, 
    136 F.3d 972
    , 980 (4th Cir. 1998) (holding that counsel’s competency not
    relevant to consideration of § 3553(a) factors relating to nature
    of offense and history and characteristics of defendant).
    Finally, Smith asserts that his sentence was considerably
    longer than the sentence of any of his nine co-defendants, and
    that this disparity is “simply unfair and unsupported by meaningful
    facts.” Section 3553(a) provides that “[t]he court, in determining
    the particular sentence to be imposed, shall consider . . . the
    need to avoid unwarranted sentence disparities among defendants
    with   similar   records   who   have   been   found   guilty   of   similar
    conduct.”   
    18 U.S.C.A. § 3553
    (a)(6).        However, in deciding against
    a variance on this ground, the district court found that Smith and
    his    co-defendants    were   not   similarly   situated.      The    other
    defendants had different criminal histories and had benefitted from
    plea agreements.       In addition, Smith received an adjustment for
    obstruction of justice based on his threats to co-defendants.             We
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    conclude that the court did not err in finding that the disparity
    was warranted.
    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 argument would not aid the decisional process.
    AFFIRMED
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