United States v. Veal , 295 F. App'x 560 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-5048
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JANISON VEAL,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. John Preston Bailey,
District Judge. (3:02-cr-00043-JPB)
Submitted: September 30, 2008 Decided: October 8, 2008
Before WILKINSON, MICHAEL, and KING, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
S. Andrew Arnold, ARNOLD CESARE & BAILEY, PLLC, Shepherdstown, West
Virginia, for Appellant. Sharon L. Potter, United States Attorney,
Thomas O. Mucklow, Assistant United States Attorney, Martinsburg,
West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Janison Veal appeals his amended sentence, following the
district court’s grant of resentencing relief on Veal’s motion
filed pursuant to 28 U.S.C. § 2255 (2000).1 Veal pled guilty to
three counts of distribution of crack cocaine and one count of
possession with intent to distribute crack cocaine, in violation of
21 U.S.C. §§ 841(a)(1), (b)(1)(C) (2000). The probation officer
prepared a Presentence Investigation Report, in which he assigned
Veal a base offense level of thirty-two, based on the amount of
drugs involved,2 pursuant to U.S. Sentencing Guidelines Manual
(“USSG”) § 2D1.1(c)(4) (2002), and an adjusted offense level of
thirty-four, after application of a two-level increase for
obstruction of justice, pursuant to USSG § 3C1.1. Combined with
Veal’s criminal history category of VI, the total offense level of
thirty-four corresponded to a guidelines sentencing range of 262 to
327 months’ imprisonment. See USSG Ch. 5, Pt. A, table. However,
the statutory maximum sentence applicable to Veal’s conviction is
1
On direct appeal, this court affirmed Veal’s conviction and
sentence. United States v. Veal, 2004 WL 233293 (4th Cir. Feb. 9,
2004) (unpublished).
2
In addition to the drug weight as set forth in the indictment
relative to the counts to which Veal pled guilty, the Government
asserted that the total weight attributable to Veal was 118.34
grams to 217.94 grams of crack cocaine, and it was on this amount
that the probation officer based Veal’s relevant conduct for
purposes of calculating his base offense level. As discussed
infra, the district court revised the relevant conduct calculation
prior to sentencing.
- 2 -
twenty years, see 21 U.S.C. § 841(b)(1)(C) (2000); thus the maximum
statutory sentence of twenty years became the guideline sentence
pursuant to USSG § 5G1.1(a). On resentencing, Veal received a
sentence of 240 months’ imprisonment, which was the same sentence
he received originally.
Veal appeals from his amended sentence, challenging the
district court’s determination of relevant conduct, asserting that
it was improperly based on unreliable hearsay, and claiming error
in the district court’s alleged use of a statistically unreliable
sampling method. He also claims his sentence was unreasonable.
This court reviews for clear error the district court’s
drug quantity determination. United States v. Fletcher, 74 F.3d
49, 55 (4th Cir. 1996). In determining relevant conduct, the
district court may consider any relevant and reliable evidence
before it, including hearsay. United States v. Bowman, 926 F.2d
380, 381-82 (4th Cir. 1991). In fact, hearsay alone can provide
sufficiently reliable evidence of drug quantity. United States v.
Uwaeme, 975 F.2d 1016, 1021 (4th Cir. 1992). The Government has
the burden of establishing the amount of drugs used for sentencing
calculations by a preponderance of the evidence. United States v.
Cook, 76 F.3d 596, 604 (4th Cir. 1996). We find no merit to Veal’s
challenges to the district court’s determination of relevant
conduct.
- 3 -
While Veal asserts error in the district court’s reliance
on testimony and statements of witnesses who asserted that they
purchased crack cocaine from Veal, he offers no proof that the
court’s factual findings as to relevant conduct were clearly
erroneous. See United States v. Adams, 988 F.2d 493, 495 (4th Cir.
1993). Rather, he offers only conclusory allegations that the
witnesses were unreliable, which is insufficient to establish clear
error. We give appropriate deference to the district court’s
findings that the evidence on which relevant conduct was
established was reliable,3 and find that the Government proved the
disputed relevant conduct by a preponderance of the evidence.
There is no reversible error on this basis. Fletcher, 74 F.3d at
55.
Veal also challenges the district court’s relevant
conduct determination on the basis that the district court
allegedly erred in using a statistically unreliable sampling
method. Specifically, he asserts that using the average of the
three controlled buy amounts, i.e., .67 grams,4 to support the
3
It is noteworthy that the evidence of relevant conduct was
determined to be sufficiently consistent and reliable by two
different district court judges, one at each of the two sentencing
proceedings.
4
The Government used three controlled buys as the basis for
its calculation of relevant drug weight, as set forth in the
indictment: .47 grams of crack in exchange for $100; .88 grams in
exchange for $100; and 1.71 grams in exchange for $200. It then
averaged these buys to conclude that Veal sold on average, .67
grams for $100.
- 4 -
conclusion that Veal sold .67 grams for $100 was statistically
inaccurate and over-inflated his total relevant conduct.
A district court has clear authority to approximate the
quantity of a drug in its determination of relevant conduct and to
rely upon circumstantial evidence and statistical methods in making
that determination. See Uwaeme, 975 F.2d at 1021; see also USSG
§ 2D1.1 Application Note 12. Here, the district court stated that
the statistical analysis proffered by the Government did not
sufficiently aid in its understanding of the case, and instead
relied upon the testimony of the case agent, Trooper Evans, who the
court recognized as an expert, to inform the court what was the
average weight of crack one could purchase for $100. Trooper Evans
testified that .5 grams of crack cocaine per $100 was a fair
calculation of Veal’s relevant conduct, based on Evans’ specific
experience and the case, rather than the .67 grams proffered by the
Government. At the conclusion of Trooper Evans’ testimony, and
following its consideration of the statements and grand jury
testimony of the seven individuals and the confidential informant,
the district court used the lower figure of .5 grams of crack per
$100 suggested by Trooper Evans, and determined that Veal was
accountable for between 50 and 150 grams of crack cocaine, with an
attendant offense level of thirty-two.
Hence, the district court in this case did exactly as
suggested by the Guidelines. Moreover, it did not utilize the
- 5 -
contested .67 gram figure which Veal complains is statistically
unreliable. We find that the district court’s relevant conduct
determination was not clearly erroneous, and Veal’s contention to
the contrary is without merit.
Finally, Veal claims his sentence is unreasonable,
arguing that a sentence at 57-71 months would be sufficient, but
not greater than necessary, to comply with the directives set forth
in 18 U.S.C. § 3553(a) (West 2000 & Supp. 2008). We will affirm
a sentence imposed by the district court if it is within the
statutorily prescribed range and reasonable. United States v.
Hughes, 401 F.3d 540, 546-47 (4th Cir. 2005). Although the
guidelines are no longer mandatory, they must still be consulted
and taken into account when sentencing. United States v. Booker,
543 U.S. 220, 264 (2005). An error of law or fact can render a
sentence unreasonable. United States v. Green, 436 F.3d 449, 456
(4th Cir. 2006). We review a district court’s factual findings for
clear error and its legal conclusions de novo. United States v.
Hampton, 441 F.3d 284, 287 (4th Cir. 2006).
In sentencing, the district court must: (1) properly
calculate the guideline range; (2) determine whether a sentence
within that range serves the factors under 18 U.S.C. § 3553(a)
(2000); (3) implement mandatory statutory limitations; and (4)
explain its reasons for selecting a sentence, especially a sentence
outside the range. Green, 436 F.3d at 455-56. A sentence within
- 6 -
a properly calculated guideline range is presumptively reasonable.
Id. at 457; see Rita v. United States, 127 S. Ct. 2456 (2007)
(upholding presumption). This presumption can be rebutted only by
showing the sentence is unreasonable when measured against the
§ 3553(a) factors. United States v. Montes-Pineda, 445 F.3d 375,
379 (4th Cir. 2006), cert. denied, 127 S. Ct. 3044 (2007).
While a district court must consider the various
§ 3553(a) factors and explain its sentence, it need not explicitly
reference § 3553 or discuss every factor on the record,
particularly when the court imposes a sentence within the guideline
range. United States v. Johnson, 445 F.3d 339, 345 (4th Cir.
2006). One reason that a sentence within an advisory range is
presumptively reasonable is that the most salient § 3553(a) factors
are already incorporated into guideline determinations. Id. at
342-43; see also Rita, 127 S. Ct. at 2467 ("where judge and
Commission both determine that" a guideline sentence is
appropriate, "that sentence likely reflects the § 3553(a)
factors"). A district court’s consideration of pertinent factors
also may be implicit in its ultimate ruling. See United States v.
Johnson, 138 F.3d 115, 119 (4th Cir. 1998); United States v. Davis,
53 F.3d 638, 642 (4th Cir. 1995). The district court’s explanation
should provide some indication that it considered the § 3553(a)
factors as to the defendant and the potentially meritorious
- 7 -
arguments raised by the parties at sentencing. Montes-Pineda, 445
F.3d at 380.
Several of the alleged errors with regard to
reasonableness advanced by Veal relate to the district court’s
determination of relevant conduct. We find no error with regard to
the relevant conduct determination in Veal’s resentencing. Veal
did not allege any specific error in the drug weight findings or
calculations, or offer any evidence to show that the weight of the
drugs attributed to him was incorrect. He has neither shown the
district court clearly erred by adopting the factual findings
regarding relevant conduct in the presentence report, nor that the
court erred in calculating the guideline range. Although Veal
requested that he be resentenced based only on the amount of drugs
to which he pled guilty, 3.06 grams of crack cocaine, which was the
total amount of drugs specified on the face of the indictment, and
objected to the information provided by other witnesses on the
ground of hearsay, there was no error in the district court’s
determination of relevant conduct, as discussed above.
Nor was there any Sixth Amendment error based on Apprendi
v. New Jersey, 530 U.S. 466 (2000), Booker, or Blakely v.
Washington, 542 U.S. 296 (2004), as we found previously in
reviewing Veal’s direct appeal. See Boeckenhaupt v. United States,
537 F.2d 1182, 1183 (4th Cir. 1976). His complaint regarding the
application of the enhancement for obstruction of justice likewise
- 8 -
previously was litigated in his direct appeal, and we will not
revisit the challenge here. Id. Veal’s assertion that because the
obstruction of justice enhancement was improper, he should have
been given a two point reduction for acceptance of responsibility
likewise fails, in light of our previous determination that there
was no error in the district court’s application of the obstruction
of justice enhancement.
Veal also challenges the reasonableness of his sentence
under Kimbrough v. United States, 128 S. Ct. 558 (2007). Veal
raised the issue of the 100:1 disparity between cocaine base and
powder cocaine in his sentencing statement, and requested at
sentencing that the district court lower his base offense level by
two levels such that his sentence would not be disproportionate to
similarly-situated defendants. At the time of Veal’s sentencing,
the district court did not have the benefit of Kimbrough.5
Moreover, the district court indicated at sentencing that, “[i]f
. . . the Sentencing Commission makes [the amendment to the
Guidelines lowering all base offense levels for crack offenders by
two] retroactive far enough back to include [Veal’s] sentence, then
. . . the new Guideline would be appropriate.” Hence, to give the
5
The Supreme Court, in Kimbrough, held that under the advisory
Guidelines, the sentencing court may conclude in a particular case
that a sentence based on the one hundred—to—one disparity is too
great, and may consequently impose a variance sentence below the
Guideline. Kimbrough, 128 S. Ct. at 575.
- 9 -
district court the opportunity to reconsider Veal’s sentence in
light of Kimbrough, resentencing is appropriate.6
Finally, Veal’s remaining claims, based on the district
court’s application of the § 3553(a) factors, are without merit.
The district court indicated that it had considered the applicable
advisory Guidelines, as well as all of the factors set forth in
§ 3553(a). The record demonstrates that the district court
properly considered these factors, noting its specific
consideration of Veal’s long, unabated criminal history, the danger
to the community caused by his drug trafficking, and his lack of
amenability to the law and societal controls. No error is evident.
Accordingly, we affirm in part and vacate in part Veal’s
amended sentence, and remand for resentencing in light of
Kimbrough. We deny Veal’s motion to file a pro se supplemental
brief. 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 IN PART,
VACATED IN PART, AND REMANDED
6
There is, of course, no criticism of the district court,
which properly applied the relevant law at the time of sentencing.
- 10 -