United States v. Lurry

210 F. App'x 291
CourtCourt of Appeals for the Fourth Circuit
DecidedDecember 27, 2006
Docket06-4367
StatusUnpublished

This text of 210 F. App'x 291 (United States v. Lurry) 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. Lurry, 210 F. App'x 291 (4th Cir. 2006).

Opinion

PER CURIAM:

Lamontez Sentell Lurry pled guilty to distribution of less than five grams of cocaine base (“crack”), in violation of 21 U.S.C. § 841(b)(1)(C) (2000). Lurry’s plea agreement indicated the parties were unable to stipulate a drug quantity to which Lurry would be held responsible for sentencing purposes and provided relevant conduct would be litigated before the district court. Lurry alleges aspects of his sentencing were improper. Finding no error, we affirm.

Lurry’s presentence report (“PSR”) recommended a base offense level of thirty-six, reflecting 500 grams of crack. See U.S. Sentencing Guidelines Manual (“USSG”) § 2D1.1(c)(2) (2004). However, following a two-day sentencing hearing in which ten witnesses testified concerning relevant conduct, the district court found Lurry was responsible for 432.75 grams of crack. Therefore, the court found Lurry’s base offense level was thirty-four. See USSG § 2Dl.l(c)(3). The district court also granted Lurry a two-level adjustment for acceptance of responsibility. See USSG § 3E1.1. Based on a total offense level of thirty-two and a criminal history category of IV, the district court determined the applicable range under the sentencing guidelines was 168 to 210 months’ imprisonment. See USSG Ch. 5, Pt. A (sentencing table). The district court sentenced Lurry to 180 months’ imprisonment, and he appealed.

Lurry argues the district court imposed an unreasonable sentence because it erroneously held him responsible for 432.75 grams of crack and improperly de *293 nied him an offense level reduction for a mitigating or minor role in the offense. 1

After United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), a sentencing court is no longer bound by the range prescribed by the sentencing guidelines. See United States v. Hughes, 401 F.3d 540, 546 (4th Cir.2005). However, sentencing courts are still required to calculate and consider the guideline range prescribed thereby as well as the factors set forth in 18 U.S.C.A § 3553(a) (West 2000 & Supp.2006). Id. We will affirm a post-Booker sentence if it is both reasonable and within the statutorily prescribed range. Id. at 546-47; see also United States v. Green, 436 F.3d 449, 457 (4th Cir.), cert. denied, — U.S.-, 126 S.Ct. 2309, 164 L.Ed.2d 828 (2006) (stating a sentence imposed within a properly calculated guideline range is presumptively reasonable).

When reviewing the district court’s application of the sentencing guidelines, we review findings of fact for clear error and questions of law de novo. Green, 436 F.3d at 456. A sentence is unreasonable if based on an error in construing or applying the sentencing guidelines. Id. at 456-57. In calculating the guideline range for each co-conspirator, “all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity, that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense” are to be included. USSG § 1B1.3 (a)(1)(B).

Lurry contends the district court overstated the drug quantity attributable to him and confused powder cocaine with crack. Of the 432.75 grams of crack the district court found attributable to Lurry, 425.25 grams were based upon Albert Byrd’s testimony. Byrd testified he pooled funds from the members of then-crack distribution conspiracy and “purchased some drugs.” Byrd initially stated he purchased “[pjrobably like nine ounces” with the pooled funds, but then agreed he had previously told an officer he purchased fifteen ounces. 2 In his prior interview, Byrd indicated he cooked the cocaine he purchased, presumably referring to powder cocaine, although he did not indicate whether he cooked the fifteen ounces referenced above.

We need not determine whether the district court’s factual finding concerning relevant conduct was clearly erroneous, because any error was harmless. In United States v. Ricco, 52 F.3d 58, 63 (4th Cir. 1995), we approved a conversion ratio of 100 grams of powder cocaine yielding eighty-eight grams of crack. Applying this formula, we find fifteen ounces of powder cocaine yield 374.22 grams of crack and nine ounces of powder cocaine yield 224.53 grams of crack. Both amounts 3 are within the range that produces a base offense level of thirty-four. See USSG § 2Dl.l(c)(3) (grouping amounts at least 150 grams and less than 500 grams). Accordingly, we conclude the district court’s determination of Lurry’s base offense level was not erroneous.

Turning to Lurry’s argument under USSG § 3B1.2, a defendant has the burden of showing by a preponderance of the evidence that he had a mitigating role in the offense. United States v. Akinkoye, 185 F.3d 192, 202 (4th Cir.1999). A *294 defendant may receive a four-level reduction for being a minimal participant if he is “plainly among the least culpable of those involved in the conduct of a group.” USSG § 3B1.2, comment, (n.4). This level of culpability is shown by “the defendant’s lack of knowledge or understanding of the scope and structure of the enterprise and of the activities of others....” Id. A two-level reduction may be made when a defendant is a minor participant; that is, one “who is less culpable than most other participants, but whose role could not be described as minimal.” USSG § 3B1.2, comment, (n.5). In deciding whether the defendant played a minor or minimal role, the “critical inquiry is not just whether the defendant has done fewer ‘bad acts’ than his co-defendants, but whether the defendant’s conduct is material or essential to committing the offense.” United States v. Pratt, 239 F.3d 640, 646 (4th Cir.2001) (internal quotations and citations omitted). Role adjustments are determined on the basis of the defendant’s relevant conduct. United States v. Fells, 920 F.2d 1179, 1183-84 (4th Cir.1990). The district court’s determination concerning the defendant’s role in the offense is a factual issue reviewed for clear error. United States v. Love, 134 F.3d 595, 606 (4th Cir.1998).

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