US v. Terry Mitchell, No. 11-4750 (4th Cir. 2012)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4750 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. TERRY WAINWRIGHT MITCHELL, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Columbia. Joseph F. Anderson, Jr., District Judge. (3:09-cr-00501-JFA-21) Submitted: August 29, 2012 Decided: August 31, 2012 Before WILKINSON, KING, and SHEDD, Circuit Judges. Affirmed by unpublished per curiam opinion. Matthew M. Robinson, ROBINSON & BRANDT, P.S.C., Covington, Kentucky, for Appellant. William N. Nettles, United States Attorney, Stacey D. Haynes, Assistant United States Attorney, Columbia, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Terry Wainwright Mitchell was convicted by a jury of conspiracy to possess with intent to distribute and distribute five kilograms or more of powder cocaine and fifty grams or more of cocaine base (crack), 21 U.S.C. § 846 (2006) (Count 1), and three counts of using a telephone to facilitate a felony (Counts 60-62), 21 U.S.C. § 843(b) (2006). special interrogatory quantity of crack which and The verdict form included a required cocaine the jury specifically to decide attributable the to Mitchell; the jury found that Mitchell was responsible for the charged amounts. In the presentence report, the probation officer noted the jury s finding that fifty grams of crack and five kilograms of cocaine were reasonably foreseeable to Mitchell, and based the offense calculation on those drug amounts. At the same time, the probation officer calculated a lower quantity based on his analysis of the trial testimony, which excluded certain drug amounts to avoid double counting. acting pro se, Mitchell At the sentencing hearing, challenged the attributed to him for Guidelines purposes. amount of drugs The district court decided that it was bound to accept the jury s finding of drug quantities special on the objection. The presentence report court and verdict adopted the determined 2 form and overruled recommendation that Mitchell s in his the advisory Guidelines range was 135-168 months. The Mitchell to a term of 152 months imprisonment. court sentenced Mitchell appeals his sentence, arguing that the district court erred in failing to make an individualized determination of the quantity of drugs attributable to him for Guidelines purposes. We affirm. The district court s decision that it was constrained to use the drug amounts from the verdict form, and lacked the authority base to make offense an level independent under U.S. determination Sentencing of Mitchell s Guidelines Manual § 2D1.1 (2010), is a legal determination; thus, we review it de novo. * United States v. Davenport, 445 F.3d 366, 370 (4th Cir. 2006). Because the jury found that fifty grams of crack or more and five kilograms of cocaine or more were attributable to Mitchell, his statutory sentencing range was ten years to life under § 841(b)(1)(A). United States v. Collins, 415 F.3d 304, 313 (4th Cir. 2005); United States v. Promise, 255 F.3d 150, 156 (4th Cir. 2001). However, that could quantity be beyond imposed determination on establishing [the placed no the defendant], restraints maximum the on jury s the court s authority to find facts relevant to sentencing. * sentence drug- district United Because at sentencing Mitchell contested the quantity of drugs attributed to him, he preserved the issue for review. 3 States v. Young, 609 F.3d 348, 357 (4th Cir. 2010); see also United States v. Brooks, 524 F.3d 549, 560 n.20 (4th Cir. 2008) ( sentencing court is free to calculate the advisory Guidelines range using facts that it finds by a preponderance of the evidence, including individualized drug quantities, . . . within the confines of the applicable statutory range ). The current sentencing process requires the district court to begin all sentencing proceedings by correctly calculating the applicable Guidelines range. (2007). To do Gall v. United States, 552 U.S. 38, 49-50 so, the district court must make relevant factual findings based on the court s view of the preponderance of the evidence. Young, 609 F.3d at 357. Mitchell argues that the district court should have adopted the probation officer s quantity attributable to him. the jury s verdict form, lower estimate of the drug Using the drug quantities from the district Guidelines range of 135-168 months. court calculated a Mitchell assumes that the court could have imposed a sentence as low as 120 months, the statutory minimum. However, in fact, the district court was not free to attribute a lesser quantity of crack and cocaine to Mitchell for Guidelines purposes than the jury did determining the statutory sentencing range. for purposes of A finding of less than fifty grams of crack or less than five kilograms of cocaine 4 would have prohibits violated the the district non-contradiction court from principle finding facts which by a preponderance of the evidence that contravene the jury s finding beyond a reasonable doubt. See United States v. Curry, 461 F.3d 452, 460-61 (4th Cir. 2006) (vacating variance sentence based on finding counter to evidence and verdict); United States v. Washburn, 444 F.3d 1007, 1014 (8th Cir. 2006) (loss amount in special verdict not disprovable by preponderance of the evidence); United States v. Campos, 362 F.3d 1013, 1015-16 (8th Cir. 2004) (vacating sentence where district court found lesser amount of drugs than jury s verdict). Therefore, the district court did not err in adopting the drug quantity determined by the jury. We therefore affirm the district court s judgment. dispense with oral argument because the facts and We legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 5
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