US v. Terrence Johnson, No. 13-4398 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4398 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. TERRENCE JOHNSON, a/k/a Freak, Defendant - Appellant. Appeal from the United States District Court for the Northern District of West Virginia, at Martinsburg. Gina M. Groh, District Judge. (3:12-cr-00049-GMG-DJJ-1) Submitted: October 31, 2013 Decided: November 21, 2013 Before MOTZ, GREGORY, and FLOYD, Circuit Judges. Affirmed by unpublished per curiam opinion. Nicholas J. Compton, Assistant Federal Public Defender, Kristen M. Leddy, Research and Writing Specialist, FEDERAL PUBLIC DEFENDER S OFFICE, Martinsburg, West Virginia, for Appellant. William J. Ihlenfeld, II, United States Attorney, Paul T. Camilletti, Assistant United States Attorney, Martinsburg, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Terrence counts of Johnson distributing § 841(a)(1) (2006). was convicted crack cocaine by and a jury heroin, of 21 four U.S.C. Based on testimony presented at Johnson s trial, the district court found that Johnson was responsible for a total of 196 to 280 grams of crack cocaine, resulting in a base offense level of 30. See U.S. Sentencing Guidelines Manual ( USSG ) § 2D1.1(c)(5) (2012). After a two-level enhancement for possession of a firearm, USSG § 2D1.1(b)(1), Johnson s total offense level was 32. Johnson s advisory imprisonment. Johnson Guidelines The appeals, With a criminal history category of II, court range imposed claiming that was 135-168 months a sentence of 135 months. his sentence is unreasonable because the drug weights used in determining relevant conduct should be conviction limited and to the because unreliable witnesses. it amounts was included based on in the the counts of testimony of We affirm. We review a sentence for reasonableness under an abuse of discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007). requires This review consideration of both procedural and substantive reasonableness of a sentence. the Id.; see United States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010). In determining the procedural reasonableness of a sentence, this court considers whether the district court properly calculated 2 the defendant s Guidelines range, treated the Guidelines as advisory, considered the 18 U.S.C. § 3553(a) (2006) factors, analyzed any arguments presented by the sufficiently explained the selected sentence. 51. A sentence Guidelines Rita v. range United imposed is within presumed States, the U.S. by 338, and Gall, 552 U.S. at properly reasonable 551 parties, this 347 calculated court. (2007); See United States v. Mendoza-Mendoza, 597 F.3d 212, 217 (4th Cir. 2010). [A] defendant can only rebut the presumption by demonstrating that the sentence is § 3553(a) factors. unreasonable when measured against the United States v. Montes-Pineda, 445 F.3d 375, 379 (4th Cir. 2006)(alteration in original). Johnson because included the argues drug that quantity quantities beyond his sentence attributed to him of conviction the counts based on the testimony of drug addicts. is unreasonable at sentencing and was We review the district court s drug quantity finding for clear error. Kellam, 568 F.3d 125, 147 (4th Cir. 2009). United States v. In calculating drug amounts for sentencing purposes, a sentencing court may give weight to any uncorroborated sufficient relevant hearsay, indicia of information provided reliability that to before the support it, including information its has accuracy. United States v. Wilkinson, 590 F.3d 259, 269 (4th Cir. 2010); see also United States v. Uwaeme, 975 F.2d 1016, 1019 (4th Cir. 3 1992) ( For sentencing purposes, hearsay alone can sufficiently reliable evidence of [drug] quantity. ). provide Moreover, drug quantity determinations for sentencing purposes can include drugs not charged in the indictment. See USSG § 1B1.3(a)(2) (defining relevant conduct to include the defendant s acts and omissions that were part of the same course of conduct or common scheme or plan as the offense of conviction ); United States v. Ellis, 975 F.2d 1061, 1067 (4th Cir. 1992). In counts of addition to conviction, the the crack district cocaine court involved also found in the Johnson responsible for an additional quantity of drugs based on the testimony of three Government witnesses. Johnson argues that these findings were based largely on unreliable testimony of long-term observe drug the witnesses specifically credibility abusers. found However, testify their determinations at after trial, testimony are having the occasion district credible. generally not to court Witness reviewable on appeal, see United States v. Saunders, 886 F.2d 56, 60 (4th Cir. 1989), and Johnson has failed to establish that any of the information relied upon by the district court was erroneous. We find reasonable. presumption sentence. We of that also Johnson s find reasonableness sentence that he afforded See Rita, 551 U.S. at 356. 4 is cannot his procedurally overcome the within-Guidelines Accordingly, we affirm. 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 5