United States v. Paxton , 15 F. App'x 72 ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 01-4139
CHARLES N. PAXTON, JR., a/k/a
Chuck,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
John T. Copenhaver, Jr., District Judge.
(CR-99-49)
Submitted: June 12, 2001
Decided: July 3, 2001
Before WIDENER, WILKINS, and LUTTIG, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
David R. Bungard, ROBINSON & MCELWEE, L.L.P., Charleston,
West Virginia, for Appellant. Rebecca A. Betts, United States Attor-
ney, John C. Parr, Assistant United States Attorney, Charleston, West
Virginia, for Appellee.
2 UNITED STATES v. PAXTON
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Charles N. Paxton, Jr., pled guilty to robbery involving a controlled
substance, 18 U.S.C. §§ 2113(a), 2 (1994), and was sentenced to a
term of 108 months imprisonment. Paxton appeals his sentence, argu-
ing that the district court erred in using the estimated street value of
the stolen controlled substances to determine the amount of loss under
U.S. Sentencing Guidelines Manual § 2B3.1(b)(7) (2000). We affirm.
The government and Paxton’s attorney stipulated that the estimated
street value of the controlled substances stolen by Paxton and his co-
defendant from the Alum Creek Pharmacy was more than $10,000.
Consequently, the district court determined that a one-level enhance-
ment was required under § 2B3.1(b)(7). Application Note 3 to
§ 2B3.1 states that the amount of loss is determined according to the
commentary to § 2B1.1. Application Note 5 to § 2B1.1 directs that,
in determining the amount of loss, controlled substances are "valued
at their estimated street value." The district court followed these
guidelines in determining that Paxton’s robbery of the Alum Creek
Pharmacy involved a loss exceeding $10,000.
Paxton argues that the Sentencing Commission’s use of the term
"should" in Application Note 5 to § 1B1.1 makes valuation of drugs
at street value discretionary rather than mandatory. He acknowledges
that no cases support his position, which would require the district
court to disregard the sentencing guidelines and commentary. As the
government notes in its brief, the Supreme Court held in Stinson v.
United States, 508 U.S. 36, 38 (1993), that commentary interpreting
or explaining a guideline is authoritative unless it violates federal law
or is inconsistent with or a plainly erroneous reading of the guideline.
Paxton has not shown that the application notes at issue here meet that
test.
UNITED STATES v. PAXTON 3
Paxton further contends that the higher street value does not reflect
the actual loss or harm to the victim, and that use of the lower retail
value would be consistent with the Supreme Court interpreted the res-
titution requirement of 18 U.S.C.A. § 3663(a) (West 2000) in Hughey
v. United States, 495 U.S. 411, 420 (1990) (holding that restitution
may not be ordered for losses resulting from offenses other than the
offense of conviction). Hughey is not germane to the argument Paxton
is making because it deals with restitution rather than valuation of
loss under the sentencing guidelines. We note that, because robbery
is not an offense which must be grouped under USSG § 2D1.1(d)
when there are multiple counts, Paxton’s relevant conduct included
only acts that occurred during the offense of conviction—the robbery
of the Alum Creek Pharmacy. See USSG § 1B1.3(a)(1), (2); USSG
§ 3D1.2(d).
In sum, we find that the district court did not err in following
Application Note 5 to § 2B1.1 and using the estimated street value of
the stolen controlled substances to determine the amount of loss.
We therefore affirm the sentence. 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