UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4076
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
LARRY C. RICHARDSON, a/k/a Too,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg. Irene M. Keeley, Chief
District Judge. (CR-02-62; CR-03-51)
Submitted: April 20, 2005 Decided: May 31, 2005
Before WILKINSON, MICHAEL, and SHEDD, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
John J. Pizzuti, MCCAMIC, SACCO & PIZZUTI, P.L.L.C., Wheeling, West
Virginia, for Appellant. Thomas E. Johnston, United States
Attorney, John C. Parr, Assistant United States Attorney, Wheeling,
West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Larry C. Richardson appeals his convictions and sentence
following a guilty plea to conspiracy to engage in interstate
travel in aid of a racketeering enterprise, in violation of 18
U.S.C. §§ 1952(a)(3), 371 (2000), and use of telephone to
facilitate the distribution of heroin, 21 U.S.C. §§ 843(b), (d)(1)
(2000). We affirm Richardson’s convictions, vacate the sentence
imposed by the district court, and remand for reconsideration of
the sentence.
Richardson contends that the district court erred in
calculating the drug amounts attributable to him at sentencing.
Specifically, he complains that distribution of crack should not
have been included as part of the relevant conduct because it was
not part of the same course of conduct or a common scheme or plan
as his heroin distribution.
A district court’s determination of the drug quantity
attributable to a defendant is a factual finding reviewed for clear
error. United States v. Randall, 171 F.3d 195, 210 (4th Cir.
1999). The Government bears the burden of proving relevant conduct
by a preponderance of the evidence. United States v. Cook, 76 F.3d
596, 604 (4th Cir. 1996). In calculating drug amounts, the court
may consider any relevant information, provided that the
information has sufficient indicia of reliability to support its
accuracy. United States v. Uwaeme, 975 F.2d 1016, 1021 (4th Cir.
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1992). Under the guidelines, drug quantities not specified in the
counts of conviction are considered relevant conduct when they are
part of the same course of conduct or common plan or scheme. U.S.
Sentencing Guidelines Manual § 1B1.3(a)(2) (2002). Richardson’s
crack distribution, which involved the same customers he
distributed heroin to contemporaneously, is similar enough in
degree and regularity to include crack distribution in Richardson’s
relevant conduct. See USSG § 1B1.3, comment. (n.9(B)). We find
that the district court did not clearly err in determining the
relevant conduct amount of drug quantities attributable to
Richardson including activity involving the distribution of crack.
Richardson next contends that the district court
erroneously enhanced his offense level for use of a firearm during
the course of his illegal activities, pursuant to USSG
§ 2D1.1(b)(1). Richardson’s argument primarily relies on his claim
that the Government’s witnesses provided unreliable testimony.
The district court’s enhancement under § 2D1.1(b)(1) is
reviewed for clear error. United States v. McAllister, 272 F.3d
228, 234 (4th Cir. 2001). “In order to prove that a weapon was
present, the Government need show only that the weapon was
possessed during the relevant illegal drug activity.” Id.
Further, witness credibility is not generally subject to review by
this court. United States v. Saunders, 886 F.2d 56, 60 (4th Cir.
1989).
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At sentencing, Frankie Cosco, William Lynch, Kenneth
Nestor, and Jason Thorn all testified that they witnessed
Richardson possess a firearm during illegal drug transactions. The
district court found the testimony of all four witnesses to be
credible. Our review of the record leads us to conclude that the
district court did not clearly err in assessing Richardson a two-
level enhancement for possession of a firearm.
Richardson argues that he should be resentenced in light
of Blakely v. Washington, 124 S. Ct. 2531 (2004), because his
sentence was enhanced on judicially found facts. Specifically,
Richardson objects to the inclusion of crack distribution
activities as relevant conduct at sentencing and the application of
a two-level firearm enhancement pursuant to USSG § 2D1.1.
Following the Supreme Court’s decisions in Blakely and United
States v. Booker, 543 U.S. __, 125 S. Ct. 738 (2005), this court
held, in United States v. Hughes, 401 F.3d 540, 547-48 (4th Cir.
2005), that a sentence that is impermissibly enhanced based on
facts found by the court constitutes plain error that affects the
defendant’s substantial rights and warrants vacating the sentence
and remanding for resentencing under Booker. Because Richardson’s
enhancement occurred under the mandatory guidelines scheme and
affected his substantial rights, as it resulted in a higher
guidelines range, the district court committed plain error. See
Hughes, 401 F.3d at 547-48.
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We accordingly affirm Richardson’s convictions, vacate
the sentence imposed by the district court, and remand for
resentencing under Hughes. We dispense with oral argument because
the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED IN PART,
VACATED IN PART, AND REMANDED
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