UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4134
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CATHERINE PONTIER,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. David A. Faber, Chief
District Judge. (CR-03-186)
Submitted: November 4, 2005 Decided: November 21, 2005
Before WILLIAMS, TRAXLER, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Matthew M. Robinson, Cincinnati, Ohio, for Appellant. Kasey Warner,
United States Attorney, R. Gregory McVey, Assistant United States
Attorney, Huntington, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Catherine Pontier appeals her conviction after a jury
trial of one count of distribution of crack cocaine, in violation
of 21 U.S.C. § 841(a)(1) (2000), and the resulting sentence of 102
months of imprisonment. Because we find no reversible error, we
affirm.
Pontier first argues that the district court erred in
admitting evidence of her involvement in a prior drug transaction.
Review of a district court’s determination of the admissibility of
evidence under Fed. R. Evid. 404(b) is for abuse of discretion.
See United States v. Queen, 132 F.3d 991, 995 (4th Cir. 1997). A
district court will not be found to have abused its discretion
unless its decision to admit evidence under Rule 404(b) was
arbitrary or irrational. See United States v. Haney, 914 F.2d 602,
607 (4th Cir. 1990) (upholding admission of evidence of similar
prior bank robberies). Evidence of other crimes is not admissible
to prove bad character or criminal propensity. Fed. R. Evid.
404(b). Such evidence is admissible, however, to prove “motive,
opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident.” Id.; see Queen, 132 F.3d at 994.
Rule 404(b) is an inclusive rule, allowing evidence of other crimes
or acts except that which tends to prove only criminal disposition.
Queen, 132 F.3d at 994-95; United States v. Rawle, 845 F.2d 1244,
1247 (4th Cir. 1988). Evidence of prior acts is admissible under
- 2 -
Rule 404(b) and Fed. R. Evid. 403 if the evidence is: (1) relevant
to an issue other than the general character of the defendant, (2)
necessary, (3) reliable, and (4) if the probative value of the
evidence is not substantially outweighed by its prejudicial effect.
Queen, 132 F.3d at 997. Limiting jury instructions explaining the
purpose for admitting evidence of prior acts and advance notice of
the intent to introduce prior act evidence provide additional
protection to defendants. Id. Our review of the record leads us
to conclude that the district court did not abuse its discretion in
admitting the evidence of Pontier’s prior drug sale.
Pontier also asserts that the district court erred in
determining the drug quantity attributed to her for sentencing
purposes, and that her sentence is contrary to the Supreme Court’s
holding in United States v. Booker, 125 S. Ct. 738 (2005).
“Consistent with the remedial scheme set forth in Booker, a
district court shall first calculate (after making the appropriate
findings of fact) the range prescribed by the guidelines.” United
States v. Hughes, 401 F.3d 540, 546 (4th Cir. 2005). Because
Pontier was resentenced post-Booker, the district court first
calculated her guideline range, including the amount of drugs
reasonably attributable to her. 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
- 3 -
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. 1992). We conclude that the district
court correctly determined the drug quantity for which Pontier was
held responsible.
After calculating the appropriate Guideline range, the
district court must then consider the range in conjunction with
other relevant factors under the Guidelines and 18 U.S.C.A.
§ 3553(a) (West 2000 & Supp. 2005), and impose a sentence. If a
court imposes a sentence outside the Guideline range, the court
must state its reasons for doing so. Hughes, 401 F.3d at 546. The
sentence must be “within the statutorily prescribed range and . . .
reasonable.” Id. at 546-47 (citations omitted). Pontier’s
conviction of distributing an unspecified quantity of crack cocaine
exposed her to a statutory maximum sentence of twenty years. 21
U.S.C.A. § 841(b)(1)(C) (West 1999 & Supp. 2005).
In this case the district court calculated the Guideline
range, but appropriately treated the Guidelines as advisory. The
court sentenced Pontier only after considering and examining the
Sentencing Guidelines and the § 3553(a) factors, as instructed by
Booker. Because the court adequately explained its reasons for a
- 4 -
sentence below the applicable Guideline range and that sentence is
well within the twenty-year statutory maximum, we conclude that the
sentence of 102 months of imprisonment is reasonable.
Accordingly, we affirm Pontier’s conviction and sentence.
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
- 5 -