United States v. Allen

344 F. App'x 844

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 07-5066

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DEMORRIS TYRESE ALLEN,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Robert J. Conrad, Jr., Chief District Judge. (3:05-cr-00390-RJC-CH-10)

Submitted: August 26, 2009 Decided: September 8, 2009

Before MICHAEL, GREGORY, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Harold M. Vaught, Charlotte, North Carolina, for Appellant. Gretchen C. F. Shappert, United States Attorney, Charlotte, North Carolina; Amy E. Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Following a jury trial, Demorris Tyrese Allen was

convicted of conspiracy to possess with intent to distribute

cocaine base. The district court imposed a 324-month sentence.

Allen appeals, contending that the evidence was insufficient to

support the verdict and that the district court’s factual

findings at sentencing violated his Sixth Amendment rights.

Finding no error, we affirm.

In order to support Allen’s conviction for conspiracy

to possess with intent to distribute crack cocaine, the

Government had to prove that he entered into an agreement with

one or more persons to engage in conduct that violated 21 U.S.C.

§ 841(a)(1) (2006), that he had knowledge of the conspiracy, and

that he knowingly and voluntarily participated in the

conspiracy. United States v. Burgos, 94 F.3d 849, 857 (4th

Cir. 1996) (en banc). Allen concedes that the evidence

supported possession with intent to distribute, but contends

that the evidence was insufficient to prove that he was a member

of a conspiracy. He argues that the evidence established a mere

buyer/seller relationship between himself and others.

In United States v. Reid, 523 F.3d 310 (4th Cir.),

cert. denied, 129 S. Ct. 663 (2008), we held that “[e]vidence of

a buy-sell transaction coupled with a substantial quantity of

drugs, would support a reasonable inference that the parties

2 were coconspirators.” Id. at 317 (internal quotation marks,

alteration, and citation omitted). Similarly, continued

relationships and repeated drug transactions between parties are

indicative of a conspiracy, particularly when the transactions

involve substantial amounts of drugs. Id.

At trial, two cooperating witnesses described Allen’s

purchases of cocaine base. One witness testified that, on one

occasion, he sold 56 grams of crack to Allen. The other witness

testified to numerous transactions between Allen and himself,

amounting to a total of approximately 560 grams of crack.

Although the individual transactions between Allen and this

witness do not involve substantial quantities, the amounts of

each transaction were significantly more than user quantities

and, over the course of their six months of dealings, this

witness provided Allen with a substantial amount of crack

cocaine. We find that this evidence, viewed in the light most

favorable to the Government, was sufficient to prove that Allen

was part of the conspiracy. See United States v. Higgs, 353

F.3d 281, 313 (4th Cir. 2003).

Allen also challenges his sentence, contending that

the district court’s finding that he was responsible for 510

grams of crack cocaine was in violation of his Sixth Amendment

right to a jury trial, when the jury made the specific finding

3 that Allen was responsible for between five and fifty grams of

crack.

“Sentencing judges may find facts relevant to

determining a Guidelines range by a preponderance of the

evidence, so long as that Guidelines sentence is treated as

advisory and falls within the statutory maximum authorized by

the jury’s verdict.” United States v. Benkahla, 530 F.3d 300,

312 (4th Cir. 2008), cert. denied, 129 S. Ct. 950 (2009); see

also United States v. Perry, 560 F.3d 246, 258 (4th Cir. 2009)

(holding that, after United States v. Booker, 543 U.S. 220

(2005), district courts may “continue to make factual findings

by a preponderance of the evidence,” including relying on

acquitted conduct). As long as the sentence imposed does not

exceed the statutory maximum authorized by the jury’s verdict,

the district court does not violate the Sixth Amendment by

imposing a sentence based on a higher drug quantity than was

determined by the jury. United States v. Webb, 545 F.3d 673,

677 (8th Cir. 2008).

Here, the jury made the specific finding that Allen

was responsible for between five and fifty grams of crack

cocaine. The maximum sentence allowed under the statute based

on this finding is life imprisonment. See 21 U.S.C.

§§ 841(b)(1)(B), 851 (2006) (authorizing sentence of ten years

to life for offenses involving more than five grams of cocaine

4 base if defendant had a prior felony drug offense). The

sentencing court determined by a preponderance of the evidence

that Allen was responsible for conspiring to possess 510 grams

of cocaine base. The 324-month sentence imposed by the court

after this finding was within the maximum authorized by the

jury’s verdict and therefore does not violate the Sixth

Amendment.

Accordingly, we affirm Allen’s conviction and

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