United States v. Martin , 29 F. App'x 178 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4166
LORENZO GRODE MARTIN,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4185
JOSET V. PROSPER,
Defendant-Appellant.

Appeals from the United States District Court
for the Eastern District of Virginia, at Alexandria.
T. S. Ellis, III, District Judge.
(CR-00-226)
Submitted: January 28, 2002
Decided: February 21, 2002
Before NIEMEYER, WILLIAMS, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Mark J. Petrovich, MARTIN, ARIF, PETROVICH & WALSH,
Springfield, Virginia; Jeffrey D. Zimmerman, Alexandria, Virginia,
2 UNITED STATES v. MARTIN
for Appellants. Paul J. McNulty, United States Attorney, W. Neil
Hammerstrom, Jr., Assistant United States Attorney, Alexandria, Vir-
ginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Following a jury trial, Lorenzo Grode Martin and Joset V. Prosper
were each found guilty of conspiracy to distribute fifty grams or more
of crack cocaine, in violation of 21 U.S.C.A. §§ 841, 846 (West 1999
& Supp. 2001), and Martin was found guilty of aiding and abetting
the possession with intent to distribute fifty grams or more of crack
cocaine, in violation of 21 U.S.C.A. § 841 and 18 U.S.C. § 2 (1994).
The court sentenced Martin to life in prison and sentenced Prosper to
a 262-month prison term. Martin and Prosper timely appealed, raising
numerous grounds of error.
Appellants’ first claim on appeal that the district court improperly
permitted lay witnesses Bernard Stanley and Jan Pinkney to testify
about the identity of the substances with which Martin and Prosper
were dealing. Under Rule 602 of the Federal Rules of Evidence, "[a]
witness may not testify to a matter unless evidence is introduced suf-
ficient to support a finding that the witness has personal knowledge
of the matter." In this case, testimony was elicited from both Stanley
and Pinkney concerning their knowledge and familiarity with crack
and cocaine. We find that the district court did not exceed its discre-
tion in allowing the testimony. See Myrtle Beach Air Force Base Fed.
Credit Union v. Cumis Ins. Soc’y, Inc., 681 F.2d 930, 932 (4th Cir.
1982) (evidence inadmissible under Rule 602 only where witness
could not have perceived or observed that about which he testifies).
Next, Appellants contend that the trial court’s questioning of wit-
nesses throughout the trial favored the government and deprived them
UNITED STATES v. MARTIN 3
of a fair trial. Having reviewed the trial transcript, we find that the
court’s questions were impartial and were asked for the purpose of
clarifying the testimony and developing the facts, United States v.
Parodi, 703 F.2d 768, 775 (4th Cir. 1983), and at no point did the
judge appear to usurp the role of either the prosecutor or defense
counsel. United States v. Godwin, 272 F.3d 659, 665 (4th Cir. 2001).
Appellants assert that the federal statutes proscribing drug offenses
have been rendered unconstitutional after Apprendi v. New Jersey,
530 U.S. 466, 490 (2000). They also argue that Apprendi should
apply to invalidate the trial court’s application of the United States
Sentencing Guidelines. These arguments are both foreclosed by our
recent case law. In United States v. McAllister, 272 F.3d 228, 232 (4th
Cir. 2001), we held that 21 U.S.C.A. § 841 (West 1999 & Supp.
2001) is not unconstitutional in light of Apprendi. Further, we held in
United States v. Kinter, 235 F.3d 192, 201 (2000), cert. denied, 121
S. Ct. 1393 (2001), that Apprendi does not apply to judicial factfind-
ing under the Guidelines as long as the sentence does not exceed the
statutory maximum term set out in the statute. The jury found both
Martin and Prosper guilty of conspiracy to distribute fifty grams or
more of crack cocaine, for which the statutory maximum sentence is
life in prison. 21 U.S.C.A. § 841(b)(1)(A)(iii). Thus, Martin’s life
sentence and Prosper’s 262-month sentence do not implicate the con-
cerns raised in Apprendi. For the same reason, the district court’s
determination that Martin’s base offense level was 38, based on its
finding that Martin conspired to distribute 1.5 kilograms or more of
cocaine base, does not violate Apprendi.
Prosper argues that she should have received a reduction in her
offense level for being a "minor participant" as defined by U.S. Sen-
tencing Guidelines Manual § 3B1.2 (2000). Whether Prosper was
entitled to such an adjustment depends on whether her conduct was
material or essential to the commission of the crime. United States v.
Palinkas, 938 F.2d 456, 460 (4th Cir. 1991). Although Prosper did not
become involved in the conspiracy until years after its inception, she
played a significant role. She introduced two other co-conspirators to
drug suppliers in Florida capable of supplying large quantities of
cocaine. She then transported that cocaine back to Virginia and made
her home and the equipment in her home available for converting the
cocaine powder into crack. We find that the district court did not
4 UNITED STATES v. MARTIN
commit clear error by concluding that Prosper was not entitled to a
mitigating role adjustment. United States v. Williams, 253 F.3d 789,
791-92 (4th Cir. 2001).
Martin raises numerous challenges to his life sentence. At the out-
set, we reject Martin’s claim that his sentence was based on the testi-
mony of Bernard Stanley who Martin contends was not a credible
witness. Credibility is the sole province of the fact finder and gener-
ally is not susceptible to review. United States v. Saunders, 886 F.2d
56, 60 (4th Cir. 1989).
Martin argues that the district court erred by assessing a three-level
aggravating role enhancement pursuant to USSG § 3B1.1(b). Under
this provision, a court may increase a defendant’s base offense level
by three levels if he was a manager or supervisor of criminal activity
involving five or more persons or was otherwise extensive. The con-
spiracy in this case involved at least five individuals and, during at
least one point of the conspiracy, Martin provided drugs for at least
one participant to sell and paid that participant a salary. We find that
the district court did not clearly err by increasing Martin’s offense
level by three levels under § 3B1.1(b). United States v. Smith, 914
F.2d 565, 569 (4th Cir. 1990).
The district court applied a two-level enhancement under USSG
§ 2D1.1(b)(1) for possession of a firearm during Martin’s drug traf-
ficking activities. Martin objects to this enhancement. One of the co-
conspirators testified that Martin carried weapons and used them in
connection with his drug trafficking activities. Police found in Mar-
tin’s Volvo that was parked in front of his home bullets matching
those seized from another car belonging to him. We find that the dis-
trict court did not err by applying this two-level enhancement. United
States v. Apple, 915 F.2d 899, 914 (4th Cir. 1990).
Concluding that, when Stanley was a minor, Martin had used him
to further the conspiracy, the court enhanced Martin’s offense level
by two levels under USSG § 3B1.4. This provision provides for a
two-offense level increase if a defendant used a minor to commit the
offense. Stanley testified that, when he was a minor, Martin paid him
a salary to sell drugs that Martin supplied. We find that the district
UNITED STATES v. MARTIN 5
court’s imposition of a two-level upward adjustment for use of a
minor was not clearly erroneous.
In calculating Martin’s criminal history category, points were
assessed based upon two prior convictions and a finding that Martin
committed the instant offense while under a two-year term of proba-
tion in the District of Columbia for a 1988 offense. Martin now
argues that he should not have been assessed any criminal history
points for having committed the instant offense during the time he
was on probation. Under USSG § 4A1.1(d), two criminal history
points are added "if the defendant committed the instant offense while
under any criminal justice sentence, including probation." Martin was
on probation from September 1988 to June 1990. Evidence presented
at trial showed that Martin paid Stanley to sell crack on a daily basis
during this time. The two point assessment was appropriate.
Finally, Martin contends that his sentence of life imprisonment vio-
lates the Eighth Amendment’s prohibition against cruel and unusual
punishment. We find this claim to be meritless. See Harmelin v.
Michigan, 501 U.S. 957 (1991).
For these reasons, we affirm Appellants’ convictions and sen-
tences. 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