US v. Jerry Dismuke, No. 11-4291 (4th Cir. 2011)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4291 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JERRY DISMUKES, Defendant - Appellant. Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. Thomas E. Johnston, District Judge. (2:09-cr-00214-1) Submitted: October 31, 2011 Decided: November 21, 2011 Before DAVIS, KEENAN, and WYNN, Circuit Judges. Affirmed by unpublished per curiam opinion. Matthew A. Victor, VICTOR, VICTOR & HELGOE, LLP, Charleston, West Virginia, for Appellant. R. Booth Goodwin II, United States Attorney, Monica L. Dillon, Assistant United States Attorney, Charleston, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Jerry Dismukes pled guilty to distributing five grams or more of cocaine months imprisonment. whether the withdraw his district guilty base ( crack ) and was sentenced to 105 On appeal, he raises three issues: (1) court plea; erred (2) by denying whether the his motion to court erred by enhancing his sentence by converting cash into crack cocaine for purposes of relevant conduct and imposing a firearm enhancement; and (3) whether his sentence was unreasonable in light of the 18 U.S.C. § 3553(a) (2006) factors. For the reasons that follow, we affirm. First, we conclude that the district court did not abuse its discretion in denying Dismukes motion to withdraw his guilty plea. United States v. Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000) (stating review standard). We note that the court held a hearing on the matter, analyzed the motion addressing each of the six factors discussed in our decision in United States v. Moore, 931 F.2d 245, 248 (4th Cir. 1991), and found only one factor weighed in favor of Dismukes. Although all the factors in Moore must be given appropriate weight, the key in determining whether a motion to withdraw should be granted is whether the plea hearing was properly conducted under Fed. R. Crim. P. 11. Cir. 1995). United States v. Puckett, 61 F.3d 1092, 1099 (4th We conclude that 2 Dismukes plea hearing was conducted in compliance with Rule 11 and that Dismukes failed to show a fair and just reason to support his request to withdraw under Fed. R. Crim. P. 11(d)(2)(B). Next, we conclude that the district court did not clearly err in finding Dismukes responsible for approximately 226 grams of crack as part of his relevant conduct. United States v. Randall, 171 F.3d 195, 210 (4th Cir. 1999) (providing review standard). crack involved. The court made a reasonable estimate of the See U.S. Sentencing Guidelines Manual ( USSG ) § 2D1.1, comment. (n.12) (2010); United States v. D Anjou, 16 F.3d 604, 614 (4th Cir. 1994). The court converted the over $10,000 in cash which was found in Dismukes possession in a hotel room, into an approximate amount purposes of determining drug weight. sentencing hearing, the court of crack cocaine for Moreover, as noted at the could have found Dismukes responsible for twice as much crack based on information in the presentence report. Likewise, we conclude that the district court did not err in determining that Dismukes sentence should be enhanced because of Manigan, the 592 firearm F.3d 621, he possessed. 631 (4th See Cir. United 2010). States The v. firearm enhancement is proper if the weapon was present unless it is clearly offense. improbable that the weapon USSG § 2D1.1, comment. (n.3). 3 was connected to the A pistol was found in Dismukes vehicle, which, along with the crack, was driven from Michigan to West Virginia for the purpose of distributing crack cocaine. Moreover, the court found that the pistol could have been accessed relatively easily. Under these circumstances, it was not clearly improbable that the weapon was related to the offense, Manigan, 592 F.3d 621, 631, and we note that a sentencing court has broad discretion to apply the enhancement. United States v. Harris, 128 F.3d 850, 852 (4th Cir. 1997). Finally, we conclude that Dismukes sentence, imposed within his properly calculated Sentencing Guidelines range, was reasonable and did not constitute an abuse of discretion, Gall v. United States, 552 U.S. 38, 41, 51 (2007), and that the court adequately factors. explained sentence in light 528 the § 3553(a) We also note that sentences imposed within a calculated sentencing range are presumption of reasonableness on appeal. Ali, of Id. at 49-51; United States v. Lynn, 592 F.3d 572, 576 (4th Cir. 2010). properly the F.3d 210, 261 (4th Cir. entitled to a United States v. Abu 2008). Because Dismukes claims fail on appeal, we affirm his conviction and sentence. We dispense with oral argument because the facts and legal before contentions the court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 4
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