United States v. Terrence Johnson , 546 F. App'x 251 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4398
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TERRENCE JOHNSON, a/k/a Freak,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. Gina M. Groh,
District Judge. (3:12-cr-00049-GMG-DJJ-1)
Submitted: October 31, 2013 Decided: November 21, 2013
Before MOTZ, GREGORY, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Nicholas J. Compton, Assistant Federal Public Defender, Kristen
M. Leddy, Research and Writing Specialist, FEDERAL PUBLIC
DEFENDER’S OFFICE, Martinsburg, West Virginia, for Appellant.
William J. Ihlenfeld, II, United States Attorney, Paul T.
Camilletti, Assistant United States Attorney, Martinsburg, West
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Terrence Johnson was convicted by a jury of four
counts of distributing crack cocaine and heroin, 21 U.S.C.
§ 841(a)(1) (2006). Based on testimony presented at Johnson’s
trial, the district court found that Johnson was responsible for
a total of 196 to 280 grams of crack cocaine, resulting in a
base offense level of 30. See U.S. Sentencing Guidelines Manual
(“USSG”) § 2D1.1(c)(5) (2012). After a two-level enhancement
for possession of a firearm, USSG § 2D1.1(b)(1), Johnson’s total
offense level was 32. With a criminal history category of II,
Johnson’s advisory Guidelines range was 135-168 months’
imprisonment. The court imposed a sentence of 135 months.
Johnson appeals, claiming that his sentence is unreasonable
because the drug weights used in determining relevant conduct
should be limited to the amounts included in the counts of
conviction and because it was based on the testimony of
unreliable witnesses. We affirm.
We review a sentence for reasonableness under an abuse
of discretion standard. Gall v. United States, 552 U.S. 38, 51
(2007). This review requires consideration of both the
procedural and substantive reasonableness of a sentence. Id.;
see United States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010).
In determining the procedural reasonableness of a sentence, this
court considers whether the district court properly calculated
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the defendant’s Guidelines range, treated the Guidelines as
advisory, considered the 18 U.S.C. § 3553(a) (2006) factors,
analyzed any arguments presented by the parties, and
sufficiently explained the selected sentence. Gall, 552 U.S. at
51. A sentence imposed within the properly calculated
Guidelines range is presumed reasonable by this court. See
Rita v. United States, 551 U.S. 338, 347 (2007); United
States v. Mendoza-Mendoza, 597 F.3d 212, 217 (4th Cir. 2010).
“[A] defendant can only rebut the presumption by demonstrating
that the sentence is unreasonable when measured against the
§ 3553(a) factors.” United States v. Montes-Pineda, 445 F.3d
375, 379 (4th Cir. 2006)(alteration in original).
Johnson argues that his sentence is unreasonable
because the drug quantity attributed to him at sentencing
included quantities beyond the counts of conviction and was
based on the testimony of drug addicts. We review the district
court’s drug quantity finding for clear error. United States v.
Kellam, 568 F.3d 125, 147 (4th Cir. 2009). In calculating drug
amounts for sentencing purposes, “a sentencing court may give
weight to any relevant information before it, including
uncorroborated hearsay, provided that the information has
sufficient indicia of reliability to support its accuracy.”
United States v. Wilkinson, 590 F.3d 259, 269 (4th Cir. 2010);
see also United States v. Uwaeme, 975 F.2d 1016, 1019 (4th Cir.
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1992) (“For sentencing purposes, hearsay alone can provide
sufficiently reliable evidence of [drug] quantity.”). Moreover,
drug quantity determinations for sentencing purposes can include
drugs not charged in the indictment. See USSG § 1B1.3(a)(2)
(defining relevant conduct to include the defendant’s acts and
omissions “that were part of the same course of conduct or
common scheme or plan as the offense of conviction”); United
States v. Ellis, 975 F.2d 1061, 1067 (4th Cir. 1992).
In addition to the crack cocaine involved in the
counts of conviction, the district court also found Johnson
responsible for an additional quantity of drugs based on the
testimony of three Government witnesses. Johnson argues that
these findings were based largely on unreliable testimony of
long-term drug abusers. However, after having occasion to
observe the witnesses testify at trial, the district court
specifically found their testimony credible. Witness
credibility determinations are generally not reviewable on
appeal, see United States v. Saunders, 886 F.2d 56, 60 (4th Cir.
1989), and Johnson has failed to establish that any of the
information relied upon by the district court was erroneous.
We find that Johnson’s sentence is procedurally
reasonable. We also find that he cannot overcome the
presumption of reasonableness afforded his within-Guidelines
sentence. See Rita, 551 U.S. at 356. Accordingly, we affirm.
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We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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