United States v. Michael ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5495
GREGORY KEITH MICHAEL,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of West Virginia, at Wheeling.
Frederick P. Stamp, Jr., Chief District Judge.
(CR-94-10061)
Submitted: June 18, 1996
Decided: July 30, 1996
Before HALL, NIEMEYER, and MICHAEL, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Gary B. Zimmerman, Pittsburgh, Pennsylvania, for Appellant. Wil-
liam D. Wilmoth, United States Attorney, Paul T. Camilletti, Assis-
tant United States Attorney, Wheeling, West Virginia, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Gregory Michael appeals his sentence arising out of his conviction
on numerous drug-related charges stemming from a conspiracy
involving the distribution of LSD, marijuana, and MDMA, in viola-
tion of 21 U.S.C.A. § 841(a)(1) (West 1981 & Supp. 1995), and 21
U.S.C. § 846 (1988). Michael first alleges that the district court
improperly held him responsible for certain quantities of LSD in
assessing his relevant conduct under the sentencing guidelines. See
United States Sentencing Commission, Guidelines Manual,
§ 1B1.3(a) (Nov. 1994). Michael contends that the testimony of Don-
ald Watson and Shannon Riley, on which the district court relied,
lacked sufficient "indicia of reliability" under section 6A1.3(a) of the
guidelines to be credited. Michael further avers that the drugs attri-
buted to him based on the testimony of Riley involved a separate
offense outside of the conspiracy. We review the district court's rele-
vant conduct determinations for clear error. See United States v.
Fletcher, 74 F.3d 49, 55 (4th Cir. 1996).
Contrary to Michael's contention, the district court made a specific
finding in this case that Watson's testimony was"not unreliable." We
note that that assessment properly rests within the province of the dis-
trict court. See United States v. Locklear, 829 F.2d 1314, 1317 (4th
Cir. 1987). Regarding the testimony of Riley, we find that even
assuming, as Michael contends, that the district court erred by attri-
buting .04 grams of LSD to him based on Riley's testimony, any pos-
sible error was harmless because Michael's base offense level would
have been the same even if this amount had been excluded from the
court's calculation. See U.S.S.G. § 2D1(c)(4).
Michael also argues that the district court erred by applying a three
level upward adjustment based on his managerial of supervisory role
in the conspiracy, pursuant to guideline section 3B1.1. Again, we
review the court's determination for clear error. See United States v.
Melton, 970 F.2d 1328, 1335 (4th Cir. 1992). The record discloses
that over a period of several years, Michael participated in a conspir-
acy which involved the distribution of drugs in at least four states, by
more than five participants. Testimony credited by the district court
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established that Michael initiated the conspiracy, recruited accom-
plices, arranged for interstate shipment of large quantities of drugs,
set prices for the drugs, and arranged to have various dealers help sell
the drugs. Under these circumstances, the district court did not clearly
err in finding that Michael qualified as a manager or supervisor under
§ 3B1.1. See United States v. Fones, 51 F.3d 663, 668-70 (7th Cir.
1995).
We therefore affirm the district court judgment. 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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