UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-5066
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DEMORRIS TYRESE ALLEN,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., Chief District Judge. (3:05-cr-00390-RJC-CH-10)
Submitted: August 26, 2009 Decided: September 8, 2009
Before MICHAEL, GREGORY, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Harold M. Vaught, Charlotte, North Carolina, for Appellant.
Gretchen C. F. Shappert, United States Attorney, Charlotte,
North Carolina; Amy E. Ray, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Following a jury trial, Demorris Tyrese Allen was
convicted of conspiracy to possess with intent to distribute
cocaine base. The district court imposed a 324-month sentence.
Allen appeals, contending that the evidence was insufficient to
support the verdict and that the district court’s factual
findings at sentencing violated his Sixth Amendment rights.
Finding no error, we affirm.
In order to support Allen’s conviction for conspiracy
to possess with intent to distribute crack cocaine, the
Government had to prove that he entered into an agreement with
one or more persons to engage in conduct that violated 21 U.S.C.
§ 841(a)(1) (2006), that he had knowledge of the conspiracy, and
that he knowingly and voluntarily participated in the
conspiracy. United States v. Burgos, 94 F.3d 849, 857 (4th
Cir. 1996) (en banc). Allen concedes that the evidence
supported possession with intent to distribute, but contends
that the evidence was insufficient to prove that he was a member
of a conspiracy. He argues that the evidence established a mere
buyer/seller relationship between himself and others.
In United States v. Reid, 523 F.3d 310 (4th Cir.),
cert. denied, 129 S. Ct. 663 (2008), we held that “[e]vidence of
a buy-sell transaction coupled with a substantial quantity of
drugs, would support a reasonable inference that the parties
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were coconspirators.” Id. at 317 (internal quotation marks,
alteration, and citation omitted). Similarly, continued
relationships and repeated drug transactions between parties are
indicative of a conspiracy, particularly when the transactions
involve substantial amounts of drugs. Id.
At trial, two cooperating witnesses described Allen’s
purchases of cocaine base. One witness testified that, on one
occasion, he sold 56 grams of crack to Allen. The other witness
testified to numerous transactions between Allen and himself,
amounting to a total of approximately 560 grams of crack.
Although the individual transactions between Allen and this
witness do not involve substantial quantities, the amounts of
each transaction were significantly more than user quantities
and, over the course of their six months of dealings, this
witness provided Allen with a substantial amount of crack
cocaine. We find that this evidence, viewed in the light most
favorable to the Government, was sufficient to prove that Allen
was part of the conspiracy. See United States v. Higgs, 353
F.3d 281, 313 (4th Cir. 2003).
Allen also challenges his sentence, contending that
the district court’s finding that he was responsible for 510
grams of crack cocaine was in violation of his Sixth Amendment
right to a jury trial, when the jury made the specific finding
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that Allen was responsible for between five and fifty grams of
crack.
“Sentencing judges may find facts relevant to
determining a Guidelines range by a preponderance of the
evidence, so long as that Guidelines sentence is treated as
advisory and falls within the statutory maximum authorized by
the jury’s verdict.” United States v. Benkahla, 530 F.3d 300,
312 (4th Cir. 2008), cert. denied, 129 S. Ct. 950 (2009); see
also United States v. Perry, 560 F.3d 246, 258 (4th Cir. 2009)
(holding that, after United States v. Booker, 543 U.S. 220
(2005), district courts may “continue to make factual findings
by a preponderance of the evidence,” including relying on
acquitted conduct). As long as the sentence imposed does not
exceed the statutory maximum authorized by the jury’s verdict,
the district court does not violate the Sixth Amendment by
imposing a sentence based on a higher drug quantity than was
determined by the jury. United States v. Webb, 545 F.3d 673,
677 (8th Cir. 2008).
Here, the jury made the specific finding that Allen
was responsible for between five and fifty grams of crack
cocaine. The maximum sentence allowed under the statute based
on this finding is life imprisonment. See 21 U.S.C.
§§ 841(b)(1)(B), 851 (2006) (authorizing sentence of ten years
to life for offenses involving more than five grams of cocaine
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base if defendant had a prior felony drug offense). The
sentencing court determined by a preponderance of the evidence
that Allen was responsible for conspiring to possess 510 grams
of cocaine base. The 324-month sentence imposed by the court
after this finding was within the maximum authorized by the
jury’s verdict and therefore does not violate the Sixth
Amendment.
Accordingly, we affirm Allen’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
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