United States v. Barge , 19 F. App'x 30 ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-4884
LEE CURTIS BARGE,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
Charles H. Haden II, Chief District Judge.
(CR-00-97)
Submitted: June 5, 2001
Decided: June 29, 2001
Before NIEMEYER, WILLIAMS, and GREGORY, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
COUNSEL
Mary Lou Newberger, Acting Federal Public Defender, George H.
Lancaster, Jr., Assistant Federal Public Defender, Charleston, West
Virginia, for Appellant. Charles T. Miller, United States Attorney,
John J. Frail, Assistant United States Attorney, Charleston, West Vir-
ginia, for Appellee.
2 UNITED STATES v. BARGE
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Lee Curtis Barge entered guilty pleas to possession with intent to
distribute a quantity of marijuana in violation of 21 U.S.C.A. § 841(West 1999) (Count 1), and using or carrying a firearm in connection
with a drug trafficking offense in violation of 18 U.S.C.A. § 924(c)
(West 2000) (Count 2). The district court sentenced him to a twenty-
seven-month prison term on Count 1 and a consecutive sixty-month
term on Count 2. Barge appeals the twenty-seven-month sentence
imposed on Count 1 on the ground that the district court clearly erred
in determining the amount of marijuana attributable to him. We agree
and, therefore, vacate the sentence imposed on Count 1 and remand
for resentencing. We affirm the judgment in all other respects.
After a sentencing hearing, at which Joseph Igo, Marvin Garrett,
and Arbera Ross testified, the district court held Barge accountable
for 440 grams of marijuana discovered in his car. The court also
found that:
[Barge] is chargeable with at least 24 pounds of mari-
juana. On describing these bales, I have heard them vari-
ously described from 24 pounds to about 45 or 46 . . ., but
I’ll say it’s at 24 pounds of marijuana.
....
I’m being conservative in my weights here. I heard an
awful lot more testified to than what the [c]ourt is attributing
to the defendant.
(JA-I at 84, 86). Thus, the court established Barge’s base offense level
at sixteen, which the court reduced by two levels for acceptance of
responsibility. With a total offense level of fourteen and a criminal
UNITED STATES v. BARGE 3
history category of III, the applicable guideline range was twenty-one
to twenty-seven months. The court sentenced Barge to a twenty-
seven-month prison term on Count 1 and a consecutive sixty-month
term for Count 2.
On appeal, Barge challenges his twenty-seven-month sentence for
the marijuana offense on the ground that the district court clearly
erred in holding him accountable for twenty-four pounds of marijuana
based primarily upon the size of the bale Ross testified he saw in
Barge’s car. We review the district court’s calculation of the quantity
of drugs attributable to a defendant for sentencing purposes for clear
error. United States v. Randall, 171 F.3d 195, 210 (4th Cir. 1999). "If
the defendant objects to a quantity recommended in a presentence
report, the district court must make an independent resolution of the
factual issues raised by the objection." United States v. Williams, 152
F.3d 294, 300-01 (4th Cir. 1998). Finally, the government must estab-
lish the quantity of drugs attributable to a defendant by a preponder-
ance of the evidence and may do so through the introduction of
relevant and reliable evidence. United States v. Jones, 31 F.3d 1304,
1316 (4th Cir. 1994).
Here, the district court estimated the amount of drugs primarily
based upon Ross’ testimony at the sentencing hearing. United States
v. D’Anjou, 16 F.3d 604, 614 (4th Cir. 1994) ("‘[W]here there is no
drug seizure or the amount seized does not reflect the scale of the
offense, the court shall approximate the quantity of the controlled
substance.’") (quoting USSG § 2D1.1, comment. (n.12)). The sen-
tencing guidelines do not demand certainty and precision; they
demand that a court do the best that it can with the evidence in the
record, erring on the side of caution. United States v. Cook, 76 F.3d
596, 604 (4th Cir. 1996).
We find that, based on the testimony at the sentencing hearing, the
district court did not err on the side of caution and over-estimated the
amount of marijuana attributable to Barge. Although the Government
notes that the amount of marijuana for which the court held Barge
accountable was less than half of the fifty-pound bale recommended
in the presentence report, at no time during the sentencing hearing did
the Government elicit testimony regarding the general sizes and
weights of marijuana bales nor did any witness testify that the bale
4 UNITED STATES v. BARGE
of marijuana seen in Barge’s car weighed twenty-four pounds. Rather,
Ross estimated at the sentencing hearing that the weight of the bale—
at most—was twelve pounds. And the other marijuana transactions to
which Igo, Garrett, and Ross testified do not support by a preponder-
ance of the evidence the base offense level established by the district
court.1
Erring on the side of caution, Cook, 76 F.3d at 604, Igo’s testimony
reflected transactions totaling 56.7 grams of marijuana (one-half
ounce, or 14.175 grams, on four occasions). Assuming that the "dime"
amount referred to by Garrett is five grams of marijuana,2 see United
States v. Harrison, 55 F.3d 163, 165 n.2 (5th Cir. 1995), fifteen trans-
actions at that amount yields 75.0 grams of marijuana. Garrett also
testified that he saw Barge with one ounce (28.35 grams) on four
occasions, totaling 113.4 grams of marijuana. Finally, Ross estimated
that the bale of marijuana weighed twelve pounds (5443.2 grams).
Adding these amounts (56.7, 75.0, 113.4, and 5443.2) to the 440
grams discovered in Barge’s car equals 6128.3 grams of marijuana,
or 6.128 kilograms. That amount corresponds to a base offense level
of fourteen. USSG § 2D1.1. Because the testimony at the sentencing
hearing does not support by a preponderance of the evidence the dis-
trict court’s determination of the amount of marijuana attributable to
Barge, we find that the district court clearly erred. Randall, 171 F.3d
at 210 (stating standard of review).
Accordingly, we vacate the twenty-seven-month sentence on Count
1 and remand for resentencing as to the quantity of marijuana attribut-
able to Barge. We affirm the judgment in all other respects. We dis-
pense with oral argument because the facts and legal contentions are
1
Because Ross gave no specifics regarding his other purchases of mari-
juana from Barge in ounce, half-pound, or pound amounts, we find that
it would be difficult to reach a conservative estimate as to these transac-
tions. Cook, 76 F.3d at 604; D’Anjou, 16 F.3d at 614.
2
The Government never established on the record how much marijuana
usually is in a "dime" bag.
UNITED STATES v. BARGE 5
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED IN PART, VACATED IN PART,
AND REMANDED