United States v. Hatten , 69 F. App'x 606 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4854
JAMES DONALD HATTEN,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of West Virginia, at Huntington.
Robert C. Chambers, District Judge.
(CR-02-95)
Submitted: June 9, 2003
Decided: July 7, 2003
Before MICHAEL, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
W. Michael Frazier, FRAZIER & OXLEY, L.C., Huntington, West
Virginia, for Appellant. Kasey Warner, United States Attorney, Miller
A. Bushong, III, Assistant United States Attorney, Huntington, West
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. HATTEN
OPINION
PER CURIAM:
James Donald Hatten appeals his conviction and seventy-six month
sentence for conspiracy to manufacture and distribute methamphet-
amine, in violation of 21 U.S.C. §§ 841(a)(1), 846 (2000). Hatten
challenges the admissibility of an in-court identification of him by
two store clerks as the primary purchaser of pseudoephedrine cold
tablets, and assigns error with respect to the calculation of his sen-
tence. Finding no error, we affirm.
Hatten’s objection to his identification by Sav-A-Lot store clerks
Brenda Cain and Megan Perry is without merit. Hatten’s argument
focuses chiefly on the witnesses’ conflicting testimonies and the fact
that the photo array contained only three photographs. This court
relies on five factors in assessing the reliability of an in-court identifi-
cation: "(1) the witness’ opportunity to view the perpetrator at the
time of the crime; (2) the witness’ degree of attention at the time of
the offense; (3) the accuracy of the witness’ prior description of the
perpetrator; (4) the witness’ level of certainty when identifying the
defendant as the perpetrator at the time of the confrontation; and (5)
the length of time between the crime and the confrontation." United
States v. Wilkerson, 84 F.3d 692, 695 (4th Cir. 1996).
With these factors in mind, we find no basis to question the reli-
ability of the clerks’ in-court identifications. First, Perry had ample
opportunity to view the purchaser, as she sold him the cold medicine
at close range and observed him during the transaction. Cain, the
assistant manager, also observed the suspects for the five minutes
they were in the store. Second, both witnesses testified to being cer-
tain the purchaser was Hatten. The third factor is neutral, as the inves-
tigating officer did not ask the witnesses for a statement describing
the purchaser prior to displaying the photographs. Regarding the wit-
nesses’ degree of attention, Perry recalled Hatten using a $100 bill to
make the purchase. Finally, the photographic identification of the
defendant was made only one day following the sale.
Furthermore, the discrepancies between the witnesses’ testimony at
trial were negligible. Perry’s and Cain’s testimonies varied only as to
UNITED STATES v. HATTEN 3
which person had made a "smart aleck comment" and whether Hatten
was wearing a hat inside the store. Moreover, the men admitted to
being in the store in their own statements to police. The crucial ques-
tion asked of the witnesses was whether they could identify if any of
the men in the photographs were in the store and purchased the cold
medicine. For this purpose, the three-photo array was not unduly sug-
gestive. The suspects were of similar build and the witnesses viewed
the lineup independently. Accordingly, given the totality of the cir-
cumstances, Hatten fails to demonstrate that his identification was in
fact unreliable.
Hatten’s assertion that the district court erred in sentencing him is
also meritless. He argued below and on appeal that the district court
should have estimated the quantity of methamphetamine for which he
was accountable according to testimony regarding the yield of cooked
methamphetamine, instead of using the guidelines conversion table by
converting it into marijuana. However, the district court properly sen-
tenced Hatten under the guidelines using the appropriate marijuana
equivalency equation under § 2D1.1.*
The district court found a base offense level of twenty-eight based
on sixty grams of pseudoephedrine converted to 600 kilograms of
marijuana. USSG § 2D1.1(c)(6). The court also allowed a three-point
decrease for Hatten being a minor participant in the conspiracy and
determined his base offense level was twenty-five. The court found
Hatten’s criminal history category to be III, setting the guideline
range between seventy and eighty-seven months. The court imposed
a sentence of seventy-six months’ imprisonment, three years’ super-
vised release, and a $100 special assessment. We find no error in
these sentencing determinations.
We therefore affirm Hatten’s conviction and sentence. We also
*The Government argues that the district court misspoke in referenc-
ing the marijuana equivalency, and instead sentenced Hatten under
§ 2D1.11, the guideline for distribution. However, the court clearly states
that it was sentencing Hatten under § 2D1.1, for manufacture, and the
PSR uses the marijuana equivalency conversion found in the November
2001 guidelines. Furthermore, using § 2D1.11 yields the same offense
level arrived at using § 2D1.1.
4 UNITED STATES v. HATTEN
grant Hatten’s motion for an extension of time to file a pro se supple-
mental brief but conclude the issues he asserts therein are meritless.
We dispense with oral argument because the facts and legal conten-
tions were adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED