United States v. McBee ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4302
MICHAEL LEE MCBEE,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
N. Carlton Tilley, Jr., District Judge.
(CR-97-219)
Submitted: December 22, 1998
Decided: January 21, 1999
Before WIDENER and MOTZ, Circuit Judges, and BUTZNER,
Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Louis C. Allen, III, Federal Public Defender, Gregory Davis, Assis-
tant Federal Public Defender, Greensboro, North Carolina, for Appel-
lant. Walter C. Holton, Jr., United States Attorney, Clifton T. Barrett,
Assistant United States Attorney, Greensboro, North Carolina, for
Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Michael Lee McBee pleaded guilty to conspiracy to distribute
crack cocaine, 21 U.S.C.A. § 846 (West Supp. 1998), and four counts
of distribution of crack, 21 U.S.C. § 841(a)(1) (West 1994). McBee
now appeals his 262-month sentence. Counsel has filed a brief pursu-
ant to Anders v. California, 386 U.S. 738 (1967), stating that in his
view there are no meritorious grounds for appeal but raising two
issues: whether the district court correctly calculated the amount of
drugs attributable to McBee; and whether the district court properly
gave McBee a three-level enhancement for his role in the offense.
McBee was informed of his right to file a pro se supplemental brief
but has not done so. Because we find no reversible error, we affirm.
McBee and at least four others distributed crack to undercover offi-
cers on various occasions between January 1996 and September 1997.
The organization operated primarily out of a dilapidated house in
Rockingham County, North Carolina, owned by McBee's uncle.
McBee himself distributed crack, set the price that members of the
organization charged for crack, and supplied the others with the drugs
that they sold.
McBee initially objected to the probation officer's finding that he
was responsible for 237.47 grams of crack. However, at sentencing,
the parties announced that he agreed with this calculation. Based on
the amount of crack attributable to McBee, his base offense level was
34. See U. S. Sentencing Guidelines Manual§ 2D1.1 (1997). The pro-
bation officer recommended a four level enhancement because
McBee was a leader or organizer of the conspiracy. See USSG
§ 3B1.1(a). McBee objected to this enhancement; at sentencing, the
government stated that it had agreed to recommend only a three-level
enhancement for being a manager or supervisor. See USSG
§ 3B1.1(b). McBee received a three-level adjustment for acceptance
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of responsibility. See USSG § 3E1.1(a), (b). His total offense level
therefore was 34. With a criminal history category of VI, his guide-
line range was 262-327 months. He received a 262-month sentence.
We reject McBee's argument that he was not a manager of the
organization and therefore should not have received a three-level
enhancement for his role in the offense. The district court's determi-
nation concerning his role in the offense is reviewed for clear error.
See United States v. Arnoldt, 947 F.2d 1120, 1128 (4th Cir. 1991).
Here, there was evidence that McBee gave drugs to others in the orga-
nization to sell, set prices of the crack that the others sold, and
screened his salesmen's customers. We conclude that the district court
did not clearly err in finding that McBee was a manager or supervisor
of the organization.
We review the district court's factual determination concerning the
amount of drugs attributable to McBee for clear error. See United
States v. Lamarr, 75 F.3d 964, 972 (4th Cir. 1996). As a member of
a conspiracy, McBee was accountable for all the drugs reasonably
foreseeable to him. See United States v. Irvin , 2 F.3d 72, 78 (4th Cir.
1993). The record discloses McBee's involvement in numerous drug
transactions, either directly or indirectly. The probation officer attri-
buted 237.47 grams of crack to McBee. This reflects twenty-three
purchases by undercover officers totaling 128.2 grams; recovery of
73.37 grams of crack during two searches of the residence out of
which McBee and his confederates operated; the recovery of $1351
in currency, which converts to 13.5 grams of crack (based on a price
of $100 per gram); and officers' observation of approximately 22.4
grams of crack--in addition to the crack purchased--during drug
transactions. McBee initially disputed these findings. However, at
sentencing, he acknowledged that the calculations were correct, and
the district court adopted the probation officer's findings. McBee
failed to present evidence that the findings were incorrect. Addition-
ally, our independent review of the record satisfies us that the amount
of crack attributed to McBee was not clearly erroneous.
As required by Anders, we have examined the entire record in this
case and find no meritorious issues for appeal. We therefore affirm
McBee's sentence. We dispense with oral argument because the facts
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and legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
We deny counsel's motion to withdraw at this time. This court
requires that counsel inform his client, in writing, of his right to peti-
tion the Supreme Court of the United States for further review. If his
client requests that a petition be filed, but counsel believes that such
a petition would be frivolous, then counsel may move in this court to
withdraw from representation. Counsel's motion must state that a
copy thereof has been served on his client.
AFFIRMED
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