United States v. Green ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4740
JOHN GREEN,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Virginia, at Harrisonburg.
Glen M. Williams, Senior District Judge.
(CR-95-109-H)
Submitted: September 8, 1998
Decided: September 28, 1998
Before HAMILTON and MOTZ, Circuit Judges, and
BUTZNER, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
John F. O'Neill Castro, Front Royal, Virginia, for Appellant. Robert
P. Crouch, Jr., United States Attorney, Donald R. Wolthuis, Assistant
United States Attorney, Jason A. DeVaux, Third-Year Law Intern,
Roanoke, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Following his conviction and 240-month sentence imposed for
drug and firearm charges, John Green appealed. We affirmed his con-
viction, but found that the district court failed to make an independent
factual finding as to the quantity of drugs properly attributable to
Green. We therefore vacated his sentence and remanded to the district
court for resentencing. After a hearing and further findings in the dis-
trict court, Green was again sentenced to 240 months. Green noted an
appeal. Green's attorney has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), asserting that the district court erred
in determining the quantity of drugs attributable to him, but certifying
that Green's appeal does not present any meritorious issues. Green
filed a motion to strike counsel's brief and to allow him to proceed
pro se. We deny these motions, but have considered the arguments
presented in Green's pro se supplemental brief, in which he also
asserts that the district court's findings as to the quantity of drugs was
erroneous and not supported by the record. Finding no clear error in
the district court's factual findings, we affirm.
Where the quantity of drugs seized does not reflect the extent of
the offense, the sentencing court may estimate the amount of drugs
involved. See U.S. Sentencing Guidelines Manual § 2D1.1, comment.
(n.12) (1995); United States v. D'Anjou, 16 F.3d 604, 614 (4th Cir.
1994). We afford the district court broad discretion in making an esti-
mate of the amount of drugs. See United States v. Cook, 76 F.3d 596,
604 (4th Cir.), cert. denied, ___ U.S. ___, 65 U.S.L.W. 3293 (U.S.
Oct. 15, 1996) (No. 96-5822). During the resentencing hearing, the
government presented the testimony of Investigator Fairburn, an
expert in narcotics cases. Fairburn testified that according to a steno
pad seized from Green's bedroom, 18.2 grams of cocaine base was
cooked in the ten-day period between July 3 and July 18, 1995. Based
on evidence that the conspiracy in which Green was a member had
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been in full operation since--at the latest--April 1, 1995, and consid-
ering the trial evidence that witnesses purchased cocaine base from
Green and his co-defendant, Darryl Curtis, prior to July 1995, Fair-
burn estimated that approximately 18 grams of cocaine base was
cooked every two weeks between April 1, 1995, and July 18, 1995.
Using this calculation, the extrapolated quantity of cocaine base
attributable to Green is 126 grams--well over the 50 gram amount
used in determining his 240-month mandatory minimum sentence.
Fairburn also extrapolated the amount of cocaine base from the $2536
in cash that was discovered at the time of Green's arrest. See United
States v. Hicks, 948 F.2d 877, 882 (4th Cir. 1991) (sentencing court
may consider sums of money involved in offense to approximate
quantity of drugs). This sum of money converted to approximately 84
grams of crack cocaine--also well above the 50 gram amount.
We find no clear error in the district court's findings that more than
50 grams of cocaine base was attributable to Green as relevant con-
duct. See United States v. McDonald, 61 F.3d 248, 255 (4th Cir.
1995). This amount was supported by the preponderance of the evi-
dence. See United States v. Williams, 986 F.2d 86, 90 (4th Cir. 1993).
We therefore affirm Green's sentence.
This court requires that counsel inform his client, in writing, of his
right to petition the Supreme Court of the United States for further
review. If the client requests that a petition be filed, but counsel
believes that such a petition would be frivolous, then counsel may
move in this court for leave to withdraw from representation. Coun-
sel's motion must state that a copy thereof was served on the client.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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