United States v. Weaver ( 2000 )

Filed: September 20, 2000
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 99-4865
(CR-99-20)
United States of America,
Plaintiff - Appellee,
versus
Harry Weaver, a/k/a Pen,
Defendant - Appellant.
O R D E R
The court amends its opinion filed September 14, 2000, as
follows:
On page 2, footnote *, line 2 -- the phrase “Smith received
sentences” is corrected to read “Weaver received sentences.”
For the Court - By Direction
/s/ Patricia S. Connor
Clerk
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4865
HARRY WEAVER, a/k/a Pen,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of West Virginia, at Wheeling.
Frederick P. Stamp, Jr., Chief District Judge.
(CR-99-20)
Submitted: August 22, 2000
Decided: September 14, 2000
Before LUTTIG and MICHAEL, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Matthew A. Victor, VICTOR & VICTOR, Charleston, West Virginia,
for Appellant. Melvin W. Kahle, Jr., United States Attorney, Sam G.
Nazzaro, Assistant United States Attorney, Stephen D. Warner, Assis-
tant United States Attorney, Wheeling, West Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Harry Weaver was convicted by a jury on two counts of manufac-
turing marijuana and one count of distribution of marijuana, in viola-
tion on 21 U.S.C. § 841(a) (1994). Weaver was ultimately sentenced
to 120 months imprisonment on the two distribution counts and a con-
current sixty-month sentence on the distribution count. On appeal,
Weaver alleges that (1) insufficient evidence supported the jury's ver-
dict; (2) the district court erred in its calculation of relevant conduct;
(3) the district court erred in denying Weaver a reduction in offense
level for acceptance of responsibility; and (4) the district court erred
in denying Weaver's motion for new trial. Finding no error, we
affirm.
We have reviewed the formal briefs and joint appendix and find
sufficient evidence to support the jury's verdict. See Glasser v. United
States, 315 U.S. 60, 80 (1942). We also do not find any clear error
in the court's calculation of relevant conduct.* See 18 U.S.C.A.
§ 3742(e) (West Supp. 2000); United States v. Lamarr, 75 F.3d 964,
972 (4th Cir. 1996) (district court's factual findings will be upheld
absent clear error); see also United States v. Jones, 31 F.3d 1304,
1316 (4th Cir. 1994) (court may take relevant conduct into account
in determining a defendant's sentence whether or not the defendant
has been convicted of the charges constituting the relevant conduct).
Furthermore, under the circumstances, we find no error in the
_________________________________________________________________
* We have considered the effect of Apprendi v. New Jersey, 120 S. Ct.
2348 (2000), and find that, because Weaver received sentences of impris-
onment and terms of supervised release that did not exceed the statutory
maximums set out in 21 U.S.C.A. § 841(b)(1)(C) (West 1999), no plain
error occurred. See United States v. Aguayo-Delgado, No. 99-4098, 2000
WL 988128, at *6 (8th Cir. July 18, 2000).
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court's denial of a reduction in Weaver's sentence for acceptance of
responsibility. See United States v. Holt, 79 F.3d 14, 17 (4th Cir.
1996) (this Court reviews a district court's decision to deny an accep-
tance of responsibility adjustment for clear error). Last, we find no
abuse of discretion in the district court's denial of Weaver's motion
for mistrial. See United States v. West, 877 F. 2d 281, 287-88 (4th Cir.
1989).
Accordingly, we affirm Weaver's convictions and sentence. 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
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