United States v. Green , 163 F. App'x 221 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4223
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TIMOTHY TYRONE GREEN,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, District Judge.
(CR-04-111)
Submitted: December 22, 2005 Decided: January 24, 2006
Before NIEMEYER, LUTTIG, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Donald H. Howe, Sr., HOWE & WYNDHAM, L.L.P., Charleston, South
Carolina, for Appellant. Jonathan S. Gasser, Acting United States
Attorney, Alston C. Badger, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Charleston, South Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Appellant Timothy Green appeals the sentence he received after
pleading guilty to selling crack cocaine. For the reasons that
follow, we affirm.
I.
In the summer of 2002, a task force comprising federal and
state law enforcement officers initiated an investigation into a
drug trafficking ring of individuals living in Colleton County,
South Carolina. This investigation led law enforcement to conclude
that Timothy Green had been involved in selling drugs.
In August of 2003, Ryan North, a co-defendant of Green,
volunteered to cooperate with law enforcement. During an interview
with law enforcement agents, North stated that in the past decade
he had purchased approximately one-half kilogram of crack and one-
half kilogram of cocaine from Green. Based on this information, on
August 29, 2003, law enforcement officers arranged for North to
make a controlled buy of fourteen grams of crack cocaine from
Green.
On February 11, 2004, a federal grand jury returned a twelve-
count indictment charging Green, North, and four other co-
defendants with various drug offenses. J.A. 14-20. Count Ten
charged that, on or about August 29, 2003, Green knowingly
possessed and distributed five grams or more of cocaine base in
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violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B).* Id. at 19.
On June 21, 2004, Green pled guilty to Count Ten. Id. at 21-28.
On October 20, 2004, a sentencing hearing took place before
the district court. However, at the hearing the parties disputed
the extent of Green’s involvement with North, and they agreed to
continue the sentencing hearing until North could testify regarding
the nature of his relationship with Green. Id. at 52. On November
4, 2004, North testified before the court about his drug
transactions with Green. He stated that between 2001 and 2003, he
had purchased drugs from Green “between six and ten” times. Id. at
99. He testified that he had never pre-arranged to buy drugs from
Green, but that Green regularly came into town to conduct drug
business on the weekends and North would try to catch him around
town on these occasions. Id. at 98-99. North testified that he
typically purchased either half an ounce or a full ounce of crack
from Green. Id. at 101.
On February 3, 2005, the district court held another
sentencing hearing. Based on North’s testimony and the
recommendation of the probation officer, the district court decided
to attribute between 50 and 150 grams of crack cocaine to Green.
Id. at 124. This resulted in Green being assigned an adjusted
*
Green was also charged in Count One with conspiracy to
possess with intent to distribute five kilograms or more of cocaine
and 50 grams or more of cocaine base. J.A. 14-15. This charge was
dropped when Green agreed to plead guilty to Count Ten.
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offense level of 29 instead of the offense level of 23 he would
have been assigned had the district court considered only the
fourteen grams involved in the sale to North to which Green pled
guilty. With a criminal history category of II and an adjusted
offense level of 29, the Sentencing Guidelines prescribed a range
between 97 and 121 months. The district court sentenced Green to
97 months. Green filed a timely notice of appeal.
II.
Green challenges his sentence on two grounds. First, he
argues that the district court violated his Sixth Amendment right
to a jury trial under United States v. Booker, 125 S. Ct. 738(2005), by including in the calculation of his offense level the
amount of drugs involved in his uncharged transactions with North.
Second, he argues that even if there was no Sixth Amendment
violation, the district court erred in considering the uncharged
transactions because they do not constitute “relevant conduct”
within the meaning of section 1B1.3(a)(2) of the Sentencing
Guidelines. These arguments are without merit.
The district court did not violate the Sixth Amendment by
considering the amount of drugs involved in Green’s uncharged
transactions with North. Booker held only that uncharged facts
cannot be used “to support a sentence exceeding the [statutory]
maximum,” 125 S. Ct. at 756 (emphasis added), not, as Green
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suggests, that a sentencing judge may not use uncharged facts to
enhance the defendant’s sentence within the statutory range.
Booker obviously contemplates that sentencing judges can,
consistent with the Sixth Amendment, rely on uncharged facts in
determining an appropriate sentence within the statutory range.
See id. at 750 (“[W]hen a trial judge exercises his discretion to
select a specific sentence within a defined range, the defendant
has no right to a jury determination of the facts that the judge
deems relevant.”). Now that the Sentencing Guidelines are
advisory, the relevant range is no longer the Guidelines range, but
the range prescribed by statute. Here, that range was five to
forty years. See 21 U.S.C. § 841(b)(1)(B). Because Green’s 97-
month sentence was within this statutory range, the district
court’s consideration of uncharged facts did not violate Green’s
Sixth Amendment right to trial by jury.
Green’s claim that the uncharged transactions with North were
not “relevant conduct” is equally meritless. For purposes of
offenses, like Green’s, where the offense level is determined by
the amount of substance involved, “relevant conduct” is defined by
section 1B1.3(a)(2) of the Sentencing Guidelines to include acts
and omissions “that were part of the same course of conduct or
common scheme or plan as the offense of conviction.” Here, the
offense of conviction was Green’s sale of fourteen grams of crack
cocaine to North. The uncharged facts considered by the district
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court -- the series of drug transactions between Green and North
over the course of the previous two years -- were obviously part of
a common scheme to trade in illegal drugs. Green argues that his
previous transactions with North were not part of a common scheme
because they did not occur at regular intervals and were not
planned ahead of time. We reject this argument. The fact that
Green had repeatedly sold crack to North in the past was clearly
“relevant conduct” in sentencing Green for his conviction for a
specific incident of selling crack to North.
CONCLUSION
For the reasons stated herein, the judgment of the district
court is 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
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