UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4367
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
LAMONTEZ SENTELL LURRY, a/k/a Chopper,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. David A. Faber, Chief
District Judge, sitting by designation. (3:04-cr-00027-WCB-DJ)
Submitted: November 30, 2006 Decided: December 27, 2006
Before WILLIAMS, MOTZ, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
John G. Hackney, Jr., Charleston, West Virginia, for Appellant.
Rita R. Valdrini, Acting United States Attorney, Thomas O. Mucklow,
Assistant United States Attorney, Martinsburg, West Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Lamontez Sentell Lurry pled guilty to distribution of
less than five grams of cocaine base (“crack”), in violation of 21
U.S.C. § 841(b)(1)(C) (2000). Lurry’s plea agreement indicated the
parties were unable to stipulate a drug quantity to which Lurry
would be held responsible for sentencing purposes and provided
relevant conduct would be litigated before the district court.
Lurry alleges aspects of his sentencing were improper. Finding no
error, we affirm.
Lurry’s presentence report (“PSR”) recommended a base
offense level of thirty-six, reflecting 500 grams of crack. See
U.S. Sentencing Guidelines Manual (“USSG”) § 2D1.1(c)(2) (2004).
However, following a two-day sentencing hearing in which ten
witnesses testified concerning relevant conduct, the district court
found Lurry was responsible for 432.75 grams of crack. Therefore,
the court found Lurry’s base offense level was thirty-four. See
USSG § 2D1.1(c)(3). The district court also granted Lurry a two-
level adjustment for acceptance of responsibility. See USSG
§ 3E1.1. Based on a total offense level of thirty-two and a
criminal history category of IV, the district court determined the
applicable range under the sentencing guidelines was 168 to 210
months’ imprisonment. See USSG Ch. 5, Pt. A (sentencing table).
The district court sentenced Lurry to 180 months’ imprisonment, and
he appealed.
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Lurry argues the district court imposed an unreasonable
sentence because it erroneously held him responsible for 432.75
grams of crack and improperly denied him an offense level reduction
for a mitigating or minor role in the offense.1
After United States v. Booker, 543 U.S. 220 (2005), a
sentencing court is no longer bound by the range prescribed by the
sentencing guidelines. See United States v. Hughes, 401 F.3d 540,
546 (4th Cir. 2005). However, sentencing courts are still required
to calculate and consider the guideline range prescribed thereby as
well as the factors set forth in 18 U.S.C.A § 3553(a) (West 2000 &
Supp. 2006). Id. We will affirm a post-Booker sentence if it is
both reasonable and within the statutorily prescribed range. Id. at
546-47; see also United States v. Green, 436 F.3d 449, 457 (4th
Cir.), cert. denied, 126 S. Ct. 2309 (2006) (stating a sentence
imposed within a properly calculated guideline range is
presumptively reasonable).
When reviewing the district court’s application of the
sentencing guidelines, we review findings of fact for clear error
and questions of law de novo. Green, 436 F.3d at 456. A sentence
is unreasonable if based on an error in construing or applying the
sentencing guidelines. Id. at 456-57. In calculating the
guideline range for each co-conspirator, “all reasonably
foreseeable acts and omissions of others in furtherance of the
1
Lurry does not appeal his conviction.
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jointly undertaken criminal activity, that occurred during the
commission of the offense of conviction, in preparation for that
offense, or in the course of attempting to avoid detection or
responsibility for that offense” are to be included. USSG
§ 1B1.3(a)(1)(B).
Lurry contends the district court overstated the drug
quantity attributable to him and confused powder cocaine with
crack. Of the 432.75 grams of crack the district court found
attributable to Lurry, 425.25 grams were based upon Albert Byrd’s
testimony. Byrd testified he pooled funds from the members of
their crack distribution conspiracy and “purchased some drugs.”
Byrd initially stated he purchased “[p]robably like nine ounces”
with the pooled funds, but then agreed he had previously told an
officer he purchased fifteen ounces.2 In his prior interview, Byrd
indicated he cooked the cocaine he purchased, presumably referring
to powder cocaine, although he did not indicate whether he cooked
the fifteen ounces referenced above.
We need not determine whether the district court’s
factual finding concerning relevant conduct was clearly erroneous,
because any error was harmless. In United States v. Ricco, 52 F.3d
58, 63 (4th Cir. 1995), we approved a conversion ratio of 100 grams
of powder cocaine yielding eighty-eight grams of crack. Applying
2
One ounce converts to 28.35 grams. See USSG § 2D1.1(c),
comment. (n.10). Therefore, fifteen ounces convert to 425.25
grams.
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this formula, we find fifteen ounces of powder cocaine yield 374.22
grams of crack and nine ounces of powder cocaine yield 224.53 grams
of crack. Both amounts3 are within the range that produces a base
offense level of thirty-four. See USSG § 2D1.1(c)(3) (grouping
amounts at least 150 grams and less than 500 grams). Accordingly,
we conclude the district court’s determination of Lurry’s base
offense level was not erroneous.
Turning to Lurry’s argument under USSG § 3B1.2, a
defendant has the burden of showing by a preponderance of the
evidence that he had a mitigating role in the offense. United
States v. Akinkoye, 185 F.3d 192, 202 (4th Cir. 1999). A defendant
may receive a four-level reduction for being a minimal participant
if he is “plainly among the least culpable of those involved in the
conduct of a group.” USSG § 3B1.2, comment. (n.4). This level of
culpability is shown by “the defendant’s lack of knowledge or
understanding of the scope and structure of the enterprise and of
the activities of others. . . .” Id. A two-level reduction may be
made when a defendant is a minor participant; that is, one “who is
less culpable than most other participants, but whose role could
not be described as minimal.” USSG § 3B1.2, comment. (n.5). In
deciding whether the defendant played a minor or minimal role, the
“critical inquiry is not just whether the defendant has done fewer
3
These amounts derive only from the information provided by
Byrd. Lurry does not challenge the additional 7.5 grams found by
the district court based upon testimony of two other witnesses.
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‘bad acts’ than his co-defendants, but whether the defendant’s
conduct is material or essential to committing the offense.”
United States v. Pratt, 239 F.3d 640, 646 (4th Cir. 2001) (internal
quotations and citations omitted). Role adjustments are determined
on the basis of the defendant’s relevant conduct. United States v.
Fells, 920 F.2d 1179, 1183-84 (4th Cir. 1990). The district
court’s determination concerning the defendant’s role in the
offense is a factual issue reviewed for clear error. United
States v. Love, 134 F.3d 595, 606 (4th Cir. 1998).
Lurry incorrectly claims the district court failed to
provide a basis for its denial under § 3B1.2. At the end of the
sentencing hearing’s first day, the court overruled Lurry’s
objection concerning the PSR’s alleged failure to recommend a
reduction on this basis. The court found Lurry presented no
credible evidence he was less responsible than the other members of
the crack distribution conspiracy. Clearly, the district court
found Lurry failed to carry his burden by a preponderance of the
evidence. See Akinkoye, 185 F.3d at 202.
Lurry also contends the district court erred when it
disregarded testimony from several witnesses that he was a minor
player in the drug conspiracy and instead credited Byrd’s testimony
that Lurry was an equal member. Lurry claims Byrd, who received
the longest sentence of all of the conspirators, had the most to
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gain by assisting the Government. Thus, Lurry attacks the district
court’s credibility determination.
Credibility determinations are within the province of the
sentencing court and will not be overturned unless clearly
erroneous. See United States v. Fisher, 58 F.3d 96, 100 (4th Cir.
1995); United States v. Choate, 12 F.3d 1318, 1321 (4th Cir. 1993)
(“Unless we can discern some greater unfairness, we will not
confine the sentencing court’s discretion to the evidence the
adversaries wish it to consider.”). The district court found
Byrd’s testimony credible because he did not plainly contradict
earlier statements to the authorities, unlike the witnesses Lurry
urges this court to credit on appeal. This credibility
determination was not clearly erroneous, and we will not overturn
it. Furthermore, after reviewing the sentencing transcript, we
conclude the district court’s denial of a reduction under USSG
§ 3B1.2 was not erroneous.
The district court imposed a sentence below the statutory
maximum, see 21 U.S.C. § 841(b)(1)(C) (2000), and within the
properly calculated sentencing guidelines range; thus, the sentence
is presumptively reasonable. See Green, 436 F.3d at 457.
Accordingly, we affirm Lurry’s sentence. We dispense with oral
argument because the facts and legal contentions are adequately
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presented in the materials before the court and argument would not
aid the decisional process.
AFFIRMED
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