United States v. Gregory Crum

• Court: Court of Appeals for the Fourth Circuit
• Decided: July 3, 2018
• Docket: 17-4634
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 17-4634

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

GREGORY CRUM,

Defendant - Appellant.

Appeal from the United States District Court for the District of West Virginia, at Charleston. John T. Copenhaver, Jr., District Judge. (2:16-cr-00133-1)

Submitted: April 19, 2018 Decided: July 3, 2018

Before NIEMEYER, MOTZ, and FLOYD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Carl Hostler, PRIM LAW FIRM, PLLC, Hurricane, West Virginia, for Appellant. Michael B. Stuart, United States Attorney, Philip H. Wright, C. Haley Bunn, Assistant United States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Gregory Crum pleaded guilty to conspiracy to distribute methamphetamine, in

violation of 21 U.S.C. § 846 (2012). The district court sentenced Crum below the

Guidelines range to 240 months of imprisonment and he now appeals. Finding no error,

we affirm.

On appeal, Crum challenges several of the district court’s Sentencing Guidelines

calculations. In reviewing the district court’s calculations under the Guidelines, “we

review the district court’s legal conclusions de novo and its factual findings for clear

error.” United States v. Manigan, 592 F.3d 621, 626 (4th Cir. 2010) (internal quotation

marks omitted). We will “find clear error only if, on the entire evidence, we are left with

the definite and firm conviction that a mistake has been committed.” Id. at 631 (internal

quotation marks omitted). The Government must demonstrate the facts underlying a

Guidelines enhancement by a preponderance of the evidence. See United States v.

Bolton, 858 F.3d 905, 912 (4th Cir. 2017); see also United States v. Cox, 744 F.3d 305,

308 (4th Cir. 2014).

Crum first argues that the district court clearly erred in calculating the amount and

purity of methamphetamine attributable to him. We review “the district court’s

calculation of the quantity of drugs attributable to a defendant for sentencing purposes for

clear error.” United States v. Slade, 631 F.3d 185, 188 (4th Cir. 2011). “When

determining facts relevant to sentencing, such as an approximated drug quantity, the

Sentencing Guidelines allow courts to consider relevant information without regard to its

admissibility under the rules of evidence applicable at trial, provided that the information

2 has sufficient indicia of reliability to support its probable accuracy.” United States v.

Crawford, 734 F.3d 339, 342 (4th Cir. 2013) (internal quotation marks omitted). In

addition, “[f]or sentencing purposes, the government must prove the drug quantity

attributable to a particular defendant by a preponderance of the evidence.” United

States v. Bell, 667 F.3d 421, 441 (4th Cir. 2011). We have thoroughly reviewed the

record and conclude that the district court did not err in calculating the amount of

methamphetamine for which Crum was responsible.

Crum next challenges the district court’s imposition of an enhancement in offense

level for a leadership role in the conspiracy. Under the Guidelines, a four-level

enhancement in offense level applies if the defendant was an organizer or leader of a

criminal activity that involved five or more participants. U.S. Sentencing Guidelines

Manual § 3B1.1(a) (2016). The Guidelines identify factors to consider in determining

whether to apply this enhancement, including the exercise of decision-making authority,

the nature of the defendant’s participation in the offense, the recruitment of accomplices,

the claimed right to a larger share of the profits of the criminal activity, the degree of

participation in planning or organizing the offense, the nature and scope of the illegal

activity, and the degree of control and authority exercised over others. USSG § 3B1.1

cmt. n.4.

“[I]n order to qualify for an enhancement, the defendant must have been the

organizer or leader of one or more other participants.” United States v. Cameron, 573

F.3d 179, 184 (4th Cir. 2009) (internal quotation marks omitted). Merely “being a buyer

and seller of illegal drugs, even in league with more than five or more other persons, does

3 not establish that a defendant has functioned as an organizer, leader, manager, or

supervisor of criminal activity.” Id. at 185 (internal quotation marks omitted). Here, the

district court correctly concluded based upon the evidence presented at the sentencing

hearing that Crum was an organizer of the conspiracy. The court did not clearly err,

therefore, in enhancing Crum’s offense level for his leadership role.

Finally, Crum asserts that the district court erred in enhancing his offense level

based on the importation of the methamphetamine from Mexico. Under the Guidelines, a

two-level enhancement applies if the offense involved the importation of

methamphetamine and the defendant is not subject to a mitigating role enhancement.

USSG § 2D1.1(b)(5). We find that the court correctly determined that the Government

demonstrated by a preponderance of the evidence that the methamphetamine Crum was

distributing had been imported from Mexico.

Accordingly, we affirm the judgment of the district court. We dispense with oral

argument because the facts and legal contentions are adequately presented in the

materials before this court and argument would not aid in the decisional process.

AFFIRMED