UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4730
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DARYL W. SMITH, a/k/a D-Nice,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg. Frederick P. Stamp, Jr.,
District Judge. (1:03-cr-00039-FPS)
Submitted: December 20, 2006 Decided: February 6, 2007
Before NIEMEYER, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
L. Richard Walker, Assistant Federal Public Defender, Clarksburg,
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Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Daryl W. Smith was convicted in 2003 of conspiracy to
distribute more than fifty grams of cocaine base (crack) (Count 1),
aiding and abetting the distribution of crack within 1000 feet of
a playground (Count 29), and distribution of more than five grams
of crack (Count 30). He was sentenced to a term of 360 months
imprisonment. We affirmed Smith’s convictions, but remanded his
case for resentencing in light of United States v. Booker, 543 U.S.
220 (2005). United States v. Smith, 138 F. App’x 557 (4th Cir.
2005) (No. 04-4420). On remand, the district court reimposed the
same sentence. Smith appeals his sentence, contending that it is
unreasonable because (1) the district court’s finding concerning
the quantity of crack attributable to him was based on co-defendant
Vernon Maxwell’s trial testimony, which Smith claims was not
credible; (2) the court refused to consider as grounds for a
variance the dismissal of a juror during his trial; and (3) the
court declined to impose a variance sentence to correct the
disparity between Smith’s sentence and the sentences of his co-
defendants. We affirm.
Initially, Smith and nine co-defendants were charged with
conspiring to sell drugs in Clarksburg, West Virginia, near the
Monticello Avenue Playground and a bar called the Vet’s Club. All
but Smith pled guilty. At Smith’s trial, numerous witnesses
identified him as their supplier. At his sentencing, Smith was
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held responsible for 507.3 grams of crack, which resulted from the
seizure of 11.2 grams of crack from the pocket of Smith’s shorts
during a search warrant executed at his home on July 9, 2003, and
the trial testimony of the following witnesses who said they bought
crack from Smith: Sammy Lockett (3.75 grams); Vernon Maxwell (375
grams); Kelli Freeman (105 grams); Henry Freeman (5 grams); Kevin
Hill (3 grams); Truman White (.6 grams); and Derrick Savage (3.75
grams).
Maxwell testified at trial that, from the fall of 2002
until the day he was arrested (July 9, 2003), he bought crack from
Smith “about 1,000 times.” However, when Maxwell was interviewed
by the prosecutor before trial, he proffered as part of his plea
agreement that he bought crack from Smith about fifty times. Later
Maxwell testified before the grand jury that he bought crack from
Smith “about a dozen” times. When Smith’s attorney confronted
Maxwell at trial with his prior statement to the grand jury,
Maxwell testified that he had misspoken, and should have said he
bought from Smith a dozen times a day. Although he was pressed on
this point and on his testimony as to how many times he saw Smith
with at least a quarter of an ounce of crack,1 Maxwell maintained
that he had not lied in his grand jury testimony, but had answered
quickly, without sufficient thought. At both sentencing hearings,
1
In his grand jury testimony, Maxwell said he saw Smith with
this amount five or six times; under cross-examination at trial, he
said over a hundred times.
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the district court decided that Maxwell’s trial testimony was
credible, despite his inconsistent prior statements.
On appeal, Smith first challenges the district court’s
decision to credit Maxwell’s trial testimony with respect to drug
quantity. We will affirm a post-Booker sentence if it “is within
the statutorily prescribed range and is reasonable.” United States
v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005) (internal quotation
marks and citation omitted). “[A] sentence within the proper
advisory Guidelines range is presumptively reasonable.” United
States v. Johnson, 445 F.3d 339, 341 (4th Cir. 2006) (citations
omitted). When imposing a sentence after Booker, courts must still
calculate the applicable advisory guideline range after making the
appropriate findings of fact and consider the range in conjunction
with other relevant factors under the guidelines and 18 U.S.C.A.
§ 3553(a) (West 2000 & Supp. 2006). Hughes, 401 F.3d at 546;
United States v. Moreland, 437 F.3d 424, 432 (4th Cir.), cert.
denied, 126 S. Ct. 2054 (2006). The government has the burden of
proving by a preponderance of the evidence the quantity of drugs
attributable to the defendant. United States v. Lipford, 203 F.3d
259, 272 (4th Cir. 2000). The district court’s factual finding
concerning drug quantity is reviewed for clear error.2 Id. at 271.
2
In his initial appeal, Smith challenged the district court’s
finding that he was responsible for 507.3 grams of crack for
sentencing purposes. We remanded the case without addressing the
issue on the merits. Because we did not decide the issue, the
district court was not foreclosed by the mandate rule from
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Smith concedes that the district court’s decision
concerning the drug quantity was based on its determination of the
credibility of Maxwell’s testimony and that credibility
determinations are within the province of the factfinder. See
United States v. Williams, 977 F.2d 866, 870 (4th Cir. 1992)
(reviewing relevant conduct determination based on witness
testimony “with due deference to the trial court’s opportunity to
assess credibility”). However, Smith contends that Maxwell’s trial
testimony diverged so dramatically from his earlier statements that
the district court clearly erred in accepting it. We disagree.
The district court had the opportunity to hear and observe Maxwell
as he testified, and was able to assess his credibility. As a
result of the vigorous cross-examination conducted by Smith’s
attorney, the court was well aware of the inconsistencies in
Maxwell’s pre-trial statements. We are satisfied that the court
did not err in deciding that Maxwell’s trial testimony was
credible. Having made that decision, the court did not clearly err
in determining that Smith was responsible for more than 500 grams
of crack and that a base offense level of 32 applied.
Next, Smith argues that the district court erred by
failing to consider a variance based on the dismissal of a juror.
In a post-Booker sentencing, after the court calculates the
revisiting the issue at the resentencing hearing, and Smith is not
foreclosed from raising it in this appeal. United States v. Bell,
5 F.3d 64, 66 (4th Cir. 1993).
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advisory guideline range, it must then consider whether that range
“serves the factors set forth in § 3553(a) and, if not, select a
sentence that does serve those factors.” United States v. Green,
436 F.3d 449, 456 (4th Cir.), cert. denied, 126 S. Ct. 2309 (2006).
In selecting a sentence that serves the § 3553(a) factors, “the
district court should first look to whether a departure is
appropriate based on the Guidelines Manual or relevant case law.”
Moreland, 437 F.3d at 432. If the resulting departure range does
not address the court’s concerns, the district court may impose a
variance sentence. Id.
Here, the district court sentenced Smith to the bottom of
the advisory guideline range after considering defense counsel’s
argument for a variance based on, among other factors, Smith’s
conviction by eleven jurors. Smith contends that the court erred
in deciding that the dismissal of a juror was not an appropriate
ground for a variance. He contends that the dismissal of the
twelfth juror made his case highly unusual in that he was deprived
at trial of “the possibility that a fair and impartial twelfth
juror may have disagreed with the other jurors and voted for
acquittal on all counts.”3
3
The juror was dismissed because he disclosed during jury
consultations that he knew of Smith some years earlier and stated
that Smith was always in trouble or, as reported by the jury
foreman and other jurors, stated that Smith “was a punk then and
still is a punk.”
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We conclude that Smith has not shown that the court’s
refusal to vary from the guideline range rendered his sentence
unreasonable. In Smith’s first appeal, we found no error in his
conviction by eleven jurors. Moreover, the fact of a juror’s
dismissal has no relation to the nature of the offense or the
history and characteristics of the defendant--the factors which are
the focus of § 3553(a). See United States v. Martinez, 136 F.3d
972, 980 (4th Cir. 1998) (holding that counsel’s competency not
relevant to consideration of § 3553(a) factors relating to nature
of offense and history and characteristics of defendant).
Finally, Smith asserts that his sentence was considerably
longer than the sentence of any of his nine co-defendants, and
that this disparity is “simply unfair and unsupported by meaningful
facts.” Section 3553(a) provides that “[t]he court, in determining
the particular sentence to be imposed, shall consider . . . the
need to avoid unwarranted sentence disparities among defendants
with similar records who have been found guilty of similar
conduct.” 18 U.S.C.A. § 3553(a)(6). However, in deciding against
a variance on this ground, the district court found that Smith and
his co-defendants were not similarly situated. The other
defendants had different criminal histories and had benefitted from
plea agreements. In addition, Smith received an adjustment for
obstruction of justice based on his threats to co-defendants. We
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conclude that the court did not err in finding that the disparity
was warranted.
We therefore affirm the sentence imposed by the district
court. 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
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