United States v. Fenton

91 F. App'x 850
CourtCourt of Appeals for the Fourth Circuit
DecidedMarch 8, 2004
Docket03-4745
StatusUnpublished

This text of 91 F. App'x 850 (United States v. Fenton) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Fenton, 91 F. App'x 850 (4th Cir. 2004).

Opinion

OPINION

PER CURIAM.

Randy Gene Fenton pled guilty to distribution of more than five grams of methamphetamine in violation of 21 U.S.C.A. § 841(a), (b)(1)(B) (West 1999 & Supp.2003), and was sentenced to a term of 108 months imprisonment. In this appeal, Fenton contests the district court’s determination of the quantity of methamphetamine attributable to him. U.S. Sentencing Guidelines Manual § 2D1.1 (2002). We affirm.

Fenton made the following sales of methamphetamine to an undercover officer in October 2002:

On October 2, Fenton sold the officer 1.1 grams of methamphetamine for $100. The methamphetamine tested 21% pure *852 and yielded .23 grams of actual methamphetamine.
On October 3, Fenton sold the officer 3.9 grams of methamphetamine for $250. The methamphetamine was 16% pure and yielded .62 grams of actual methamphetamine.
On October 9, Fenton sold the officer 16 grams of methamphetamine that was 25% pure and yielded four grams of actual methamphetamine, and 15.9 grams of methamphetamine that was 21% pure and yielded 3.3 grams of actual methamphetamine for $750. Fenton also offered to sell cocaine and gave the officer 1.1 grams of cocaine so that he could try it.
On October 23, Fenton sold the officer 55.3 grams of methamphetamine that was 29% pure and yielded 11 grams of actual methamphetamine for $1500. Fenton told the officer he could obtain a pound of methamphetamine with a day’s notice and would sell it for $10,000 a pound or $5000 a half-pound.

Fenton was arrested on December 12, 2002, when authorities began to suspect he was about to leave the area. He was in possession of 2.4 grams of methamphetamine that was 29% pure and yielded .69 grams of actual methamphetamine, $9518 in currency, a loaded firearm, a quantity of marijuana, and various unidentified pills.

Over Fenton’s objection, the district court determined that the $9518 was drug proceeds and estimated that it represented 12.69 ounces of methamphetamine, the amount that could be purchased at $750 per ounce. The court determined that the average purity of the methamphetamine Fenton had sold the officer was 21% and, using that percentage, converted the estimated 12.69 ounces of methamphetamine to 79.14 grams of pure methamphetamine. This calculation yielded a total of 95.45 grams of pure methamphetamine which established a base offense level of 32. USSG § 2D1.1(c)(4) (applicable in offense involving 50-150 grams of methamphetamine (actual)).

The court rejected Fenton’s claim that the $2600 paid to him by the undercover officer should be deducted from the $9518 in his possession when he was arrested, finding that, because Fenton’s last sale to the officer occurred fifty days before his arrest, it was a reasonable assumption that those funds had already been used. The court found that there was “no other reasonable explanation than drug sales” for his possession of the entire $9518. The court found that only a small part of the total quantity of methamphetamine that Fenton sold to the officer was sold for $100 per gram, while most was sold at a price less advantageous to Fenton for sentencing purposes. The court determined that the fair conversion rate for the seized funds was $750 per ounce rather than $100 per gram as Fenton suggested. The court decided against conversion of the funds to cocaine, which Fenton favored, because there was no evidence of cocaine sales despite Fenton’s offer to sell cocaine to the officer.

The court imposed a sentence of 108 months imprisonment, the bottom of the range. Fenton contends on appeal that the district court clearly erred in failing to exercise caution in determining the quantity of methamphetamine attributable to him.

The district court’s determination of the amount of drugs attributable to the defendant for sentencing purposes is generally a factual finding reviewed for clear error. United States v. Sampson, 140 F.3d 585, 591 (4th Cir.1998). When the amount of drugs “seized does not reflect the scale of the offense, the district court shall approximate the quantity to be used for sentencing.” USSG § 2D1.1, comment, (n.12). *853 When approximation is necessary, the court “may properly convert cash amounts linked credibly to the defendant’s purchase or sale of narcotics so long as the court does not engage in double counting of both the proceeds and the narcotics themselves.” Sampson, 140 F.3d at 592.

Fenton contends that the district court erred when it converted the seized funds to actual methamphetamine because it failed to exercise appropriate caution. He relies principally on United States v. Sepulveda, 15 F.3d 1161, 1198 (1st Cir.1993) (holding that, “where uncertainty reigns” about the amount of drugs involved in a conspiracy, courts should “err on the side of caution”). We are not persuaded that the district court failed to exercise appropriate caution in this case.

Fenton claims first that the court erred in refusing to reduce the $9815 in his possession by $2600 to account for money he received from the undercover officer and avoid double counting. In connection with this issue, he argues that the government failed to produce evidence to support the court’s conclusion that the entire $9518 was drug money. We note that, at sentencing, Fenton did not challenge the district court’s treatment of the $9518 as drug proceeds. He objected only to the court’s failure to deduct $2600 before approximating the amount of methamphetamine the money represented. Applying the plain error standard, see United States v. Mackins, 315 F.3d 399, 406 (4th Cir.), cert. denied, 538 U.S. 1045, 123 S.Ct. 2099, 155 L.Ed.2d 1083 (2003), we are satisfied that the district court did not plainly err in treating all the money as drug proceeds because Fenton was known to sell methamphetamine and the court had no evidence of any other source for the money.

The court did not clearly err or fail to exercise appropriate caution in concluding that none of the money was proceeds of Fenton’s sales to the undercover officer because fifty days had passed since Fen-ton’s last sale to the officer. Fenton told the undercover officer that he could obtain large amounts of methamphetamine on short notice. Thus, the court could reasonably infer that, by the time he was arrested, Fenton had used the money he received from the officer during the preceding month and a half, and that the money he possessed at arrest was the proceeds of later drug sales.

Fenton also maintains that the district court erred by failing to exercise appropriate caution when it converted the seized funds to methamphetamine rather than cocaine because there was no evidence that the money came from methamphetamine sales rather than cocaine sales. The court had before it evidence of Fenton’s methamphetamine distributions and evidence of his willingness to sell cocaine, but no definite evidence that he had sold cocaine.

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Related

United States v. Sepulveda
15 F.3d 1161 (First Circuit, 1993)
United States v. Sampson
140 F.3d 585 (Fourth Circuit, 1998)
United States v. Mackins
315 F.3d 399 (Fourth Circuit, 2003)

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Bluebook (online)
91 F. App'x 850, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-fenton-ca4-2004.