US v. Richard McDonald, No. 12-4400 (4th Cir. 2013)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4400 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. RICHARD MCDONALD, Defendant - Appellant. Appeal from the United States District Court for the Northern District of West Virginia, at Clarksburg. Irene M. Keeley, District Judge. (1:10-cr-00090-IMK-JSK-1) Submitted: January 29, 2013 Decided: February 11, 2013 Before NIEMEYER, KING, and GREGORY, Circuit Judges. Affirmed by unpublished per curiam opinion. Stephen D. Herndon, Wheeling, West Virginia, for Appellant. William J. Ihlenfeld, II, United States Attorney, Zelda E. Wesley, Assistant United States Attorney, Clarksburg, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: A jury convicted Richard McDonald of conspiracy to distribute and possess with intent to distribute cocaine base, in violation of 21 U.S.C. § 846 (2006) (Count One), and distribution of cocaine base and/or cocaine hydrochloride during four controlled buys, in violation of (2006) (Counts Two through Five). special verdict finding beyond 21 U.S.C. § 841(a)(1) The jury also returned a a reasonable doubt that conspiracy involved less than five grams of cocaine base. the The district court sentenced McDonald to 121 months imprisonment based on marijuana provided an equivalent established by a drug weight primarily Government of by witness, 1202.18 historical Tito Bell. kilograms of information On appeal, McDonald challenges Bell s credibility and the district court s drug-quantity determination. We affirm. We review a sentence for abuse of discretion. United States, 552 U.S. 38, 51 (2007). Gall v. McDonald first argues that the district court erred when it calculated his Sentencing Guidelines range without giving substantial, if not controlling weight, to the jury s determination that the conspiracy involved less than five grams of crack cocaine. However, his argument is foreclosed by United States v. Perry, 560 F.3d 246, 258-59 (4th Cir. 2009) (citing, among other cases, United States v. Watts, 519 U.S. 148, 155-56 (1997)). 2 Apart from the jury s drug-quantity finding, McDonald also challenges the district court s independent assessment of Bell s credibility, erroneous. We rendering review the findings for clear error. its drug-quantity district determination court s drug-quantity United States v. Cabrera-Beltran, 660 F.3d 742, 756 (4th Cir. 2011), cert. denied, 132 S. Ct. 1935 (2012). upon [W]hen a district court s factual finding is based assessments of witness credibility, such finding deserving of the highest degree of appellate deference. is United States v. Thompson, 554 F.3d 450, 452 (4th Cir. 2009) (internal quotation marks omitted). Our review of the record leads us to conclude that the district court did not abuse its discretion by finding Bell historical to weight be a credible information witness he and provided. relying on Moreover, the we conclude that the explanation offered by the district court for its chosen review. sentence was sufficient for meaningful appellate See United States v. Bell, 667 F.3d 431, 444-48 (4th Cir. 2011). Finally, McDonald asserts that the district court was obligated to sentence him at the low end of the potential drug quantities established by Bell s testimony. We have held that a district court need not err, on the side of caution or otherwise [in approximating drug quantity]; it must only determine that it was more likely than not that the defendant 3 was responsible for at least the drug quantity attributed to him. United States v. Kiulin, 360 F.3d 456, 461 (4th Cir. 2004). Here, the court found that Bell s credible estimates of the drug quantities he purchased from McDonald were typical of drug transactions involving middlemen. We therefore conclude that McDonald is not entitled to relief on this claim. Accordingly, we affirm the district court s judgment. We dispense contentions with are oral argument adequately because presented in the facts and the materials legal before this court and argument would not aid the decisional process. AFFIRMED 4
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