United States v. McClelland

• Court: Court of Appeals for the Tenth Circuit
• Decided: March 24, 1999
• Docket: 98-3024
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS MAR 24 1999 TENTH CIRCUIT PATRICK FISHER Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee, No. 98-3024 v. (D.C. 96-CR-10054-MLB) (District of Kansas) RONALD O. McCLELLAND,

Defendants-Appellants.

ORDER AND JUDGMENT *

Before SEYMOUR , Chief judge, BALDOCK , and HENRY , Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App.P.34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

A jury convicted Ronald O. McClelland of one count of conspiracy to

distribute cocaine in violation of 21 U.S.C. § 846 and 18 U.S.C. § 2, and seven

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

1 counts of money laundering in violation of 18 U.S.C. § 1956(a)(a)(B)(I). On

appeal, Mr. McClelland argues that there was insufficient evidence presented in

the district court to support the jury's verdict and that his sentence of 262 months

was improperly calculated under the Sentencing Guidelines. Mr. McClelland’s

lawyer, Jerome R. Jones, has filed a motion to withdraw supported by a brief in

accordance with Anders v. California , 386 U.S. 738 (1967). His brief argues that

an appeal challenging the sufficiency of the evidence and Mr. McClelland’s

sentence would be frivolous. 1 We exercise jurisdiction pursuant to 28 U.S.C. §

1291 and 18 U.S.C. § 3742(a), grant counsel’s motion to withdraw, and affirm.

Sufficiency of the Evidence

Sufficiency of the evidence is a question of law we review de novo. See

United States v. Wilson , 107 F.3d 774, 778 (10th Cir.1997). We will deem

evidence sufficient to support a conviction if, viewing the evidence and all

reasonable inferences therefrom in the light most favorable to the government, a

reasonable jury could find the defendant guilty beyond a reasonable doubt. See

id.

1 Mr. McClelland was given notice of his counsel’s Anders brief on April 27, 1998. However, despite being granted two extensions of time, Mr. McClelland did not file a response .

2 In the present case, there was overwhelming evidence from which the jury

could conclude that Mr. McClelland was guilty of the alleged charges. For

example, at trial, several of Mr. McClelland’s accomplices testified that he was

the leader of a group of people transporting cocaine from California to Kansas.

The accomplices described how women were flown to California, met with Mr.

McClelland’s associates, and carried cocaine to him in Kansas. The accomplices

also described how, after the narcotics were sold, Mr. McClelland wired money

via Western Union to California in order to buy more cocaine. Specifically, the

government presented testimony and evidence of seven Western Union

transactions carried out in Mr. McClelland’s name or in the name of a know alias.

Testimony from a handwriting expert established that Mr. McClelland signed five

of the Western Union forms used to send money to California and that it was

probable that he signed the remaining two forms. Additionally, the government

submitted evidence to establish that Mr. McClelland did not have a lawful source

of money during this time period. After careful examination of the record and

viewing the evidence in the light most favorable to the government, we conclude

that Mr. McClelland’s claim is meritless and sustain the convictions.

3 Alleged Sentencing Error

Mr. McClelland contends that the district court erred in determining the

quantity of drugs for his base offense level calculation. Specifically, he asserts

that his base offense level was erroneously determined by converting the dollar

amount indicated by the Western Union wire transfers into a quantity of cocaine.

However, Mr. McClelland’s counsel states in the Anders brief that his sentence

was lawful and correct under the Sentencing Guidelines. “We review the district

court's interpretation and application of the Sentencing Guidelines de novo and

review the court's factual findings as to drug quantity for clear error.” United

States v. Wacker , 72 F.3d 1453, 1477 (10th Cir.1995) (citations omitted).

When the actual drugs underlying a drug quantity determination are not

seized, the trial court may rely upon an estimate to establish the defendant's

guideline offense level, "so long as the information relied upon has some basis of

support in the facts of the particular case and bears sufficient indicia of

reliability." Id. at 1477 (quotations omitted). This circuit has specifically held

that, where the actual drugs are not seized, sums of money can be converted to

drug equivalents for purposes of sentencing, so long as the resulting drug

quantities are determined to be relevant quantities under USSG § 1B1.3. United

States v. Rios , 22 F.3d 1024, 1027-28 (10th Cir. 1994) (affirming district court’s

conversion of $14,920.00, found in a brown paper bag, and $31,600.00, found in

4 an envelope, into approximately 1,100 grams of cocaine for sentencing purposes).

In the present case, the probation office converted the dollar amount of the

Western Union wire transfers into a quantity of cocaine. After careful review of

the record, we conclude that the estimated amount of cocaine bears sufficient

indicia of reliability to support Mr. McClelland’s base offense level under the

Sentencing Guidelines and therefore affirm Mr. McClelland’s sentence.

Accordingly, for the reasons set forth above, we GRANT Mr. Jones’ motion

to withdraw and AFFIRM Mr. McClelland ’s conviction and sentence.

Entered for the Court,

Robert H. Henry Circuit Judge