UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4137
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JESSE IAN SMITH,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. John T. Copenhaver, Jr.,
District Judge. (2:05-cr-00119-ALL)
Submitted: October 17, 2007 Decided: November 15, 2007
Before NIEMEYER and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, Charleston, West Virginia, for Appellant.
Charles T. Miller, United States Attorney, Monica K. Schwartz,
Assistant United States Attorney, Charleston, West Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jesse Ian Smith appeals the district court’s judgment
entered pursuant to Smith’s guilty plea to distribution of cocaine
in violation of 21 U.S.C. § 841(a)(1) (2000). Smith’s sole
argument on appeal is that his sentence is unreasonable because,
although it is within the guidelines range calculated by the
district court and would otherwise be entitled to a presumption of
reasonableness, see Rita v. United States, 127 S. Ct. 2456, 2462
(2007), his guidelines range was incorrectly calculated. Namely,
Smith asserts that the district court clearly erred in determining
his relevant conduct for purposes of calculating his base offense
level when it relied on a witness’s prior unsworn statement
attributing fifty ounces of cocaine to Smith, rather than the
witness’s later sworn testimony at the sentencing hearing
attributing only five ounces of cocaine to Smith. Finding no
error, we affirm.
We review the district court’s factual determinations
underlying its drug quantity calculations for clear error. See
United States v. Fletcher, 74 F.3d 49, 55 (4th Cir. 1996). A
factual finding will be considered clearly erroneous only “when
although there is evidence to support it, the reviewing court on
the entire evidence is left with the definite and firm conviction
that a mistake has been committed.” United States v. U.S. Gypsum
Co., 333 U.S. 364, 395 (1948). In calculating the amount of drugs
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to attribute to a defendant, “the court may consider relevant
information . . ., provided that the information has sufficient
indicia of reliability to support its probable accuracy.” United
States v. Uwaeme, 975 F.2d 1016, 1021 (4th Cir. 1992) (internal
quotation marks, citation and emphasis omitted).
We conclude that the district court did not clearly err
in calculating Smith’s guidelines range. The district court’s
decision to credit the witness’s prior unsworn statement was a
credibility determination and is therefore not reviewable on
appeal. See Columbus-Am. Discovery Group v. Atlantic Mut. Ins.
Co., 56 F.3d 556, 567 (4th Cir. 1995) (“Absent extraordinary
circumstances, we will not disturb a factfinder’s credibility
determinations.”); see also United States v. Locklear, 829 F.2d
1314, 1317 (4th Cir. 1987) (stating that this court will decline to
overturn a factual determination founded on witness demeanor and
credibility absent compelling evidence to the contrary). Because
it was reasonable for the district court to credit the witness’s
prior statement, made closer in time to the events in question and
which was against the witness’s penal interest, we conclude that no
extraordinary circumstances are present mandating us to disturb the
district court’s credibility determination.
Based on the foregoing, we affirm the district court’s
judgment. We dispense with oral argument because the facts and
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legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
AFFIRMED
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