United States v. Stoudemire , 15 F. App'x 119 ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-4799
ROY L. STOUDEMIRE,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Anderson.
Henry M. Herlong, Jr., District Judge.
(CR-00-191)
Submitted: July 26, 2001
Decided: August 2, 2001
Before WILKINS, LUTTIG, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Jonathan Matthew Harvey, Columbia, South Carolina, for Appellant.
Scott N. Schools, United States Attorney, E. Jean Howard, Assistant
United States Attorney, Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. STOUDEMIRE
OPINION
PER CURIAM:
Roy L. Stoudemire pled guilty to conspiracy to possess with intent
to distribute cocaine and cocaine base and was sentenced to 151
months imprisonment. He contends that the district court clearly erred
in determining that he committed a crime while he was on bond
awaiting sentencing. Accordingly, he argues that the district court
should not have denied him an acceptance of responsibility adjust-
ment based on his continued criminal activity. We affirm.
It is undisputed that criminal conduct committed by a defendant
during his criminal proceedings may be a basis for finding the defen-
dant has not accepted responsibility for the offense of conviction.
United States v. Kidd, 12 F.3d 30, 34 (4th Cir. 1993). Factual disputes
concerning adjustments under the guidelines should be resolved by a
preponderance of the evidence. United States v. Urrego-Linares, 879
F.2d 1234, 1238-39 (4th Cir. 1989). A district court’s findings of fact
concerning role adjustments must be affirmed unless clearly errone-
ous. United States v. Smith, 914 F.2d 565, 569 (4th Cir. 1990).
At sentencing, Officer Eduardo Salazar testified that, with
Stoudemire’s consent, he searched Stoudemire’s car and recovered a
plastic bag, containing five smaller plastic baggies, each holding a
green leafy substance that Salazar recognized as marijuana. Salazar
then arrested Stoudemire for possession with intent to distribute mari-
juana. The district court found Salazar to be credible. Stoudemire did
not offer any evidence to contradict Salazar’s testimony.
Nonetheless, Stoudemire asserts that there was no chemical analy-
sis to determine whether the substance seized was actually marijuana
and that he was not the record owner of the car. However, Salazar tes-
tified that, based on his experience as a police officer, he recognized
the substance as marijuana. In addition, Salazar stated that
Stoudemire drove the car on prior occasions, possessed keys, and did
not deny that the car was his when asked for consent to search. We
find this evidence sufficient to establish Stoudemire’s possession of
marijuana by a preponderance of the evidence. Thus, the district court
did not err in denying an acceptance of responsibility adjustment.
UNITED STATES v. STOUDEMIRE 3
Stoudemire’s sentence is, therefore, affirmed. 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