UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4792
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CLARENCE ALLEN TORRES, a/k/a C,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington. Robert C. Chambers,
District Judge. (3:09-cr-00110-1)
Submitted: June 23, 2011 Decided: July 13, 2011
Before NIEMEYER, MOTZ, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Stephen Stockton, ROBINSON & MCELWEE, PLLC, Charleston, West
Virginia, for Appellant. R. Booth Goodwin II, United States
Attorney, Joshua C. Hanks, Assistant United States Attorney,
Huntington, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Clarence Allen Torres pled guilty to possession with
intent to distribute five grams or more of cocaine base (crack),
in violation of 21 U.S.C. § 841(a) (2006), and was sentenced to
a term of 121 months’ imprisonment. Torres appeals his
sentence, arguing that (1) he should be resentenced under the
Fair Sentencing Act of 2010 (FSA), Pub. L. No. 111-220, 124
Stat. 2372, which took effect on August 3, 2010, nearly a month
after he was sentenced, and (2) the sentence is unreasonable
because the district court determined the amount of crack for
which he was responsible by considering unreliable testimony.
We affirm.
The Fair Sentencing Act does not indicate that it is
intended to be applied retroactively. Torres contends that “the
strong opinions voiced by Congressional leaders, and the
unanimous passage of the FSA,” permit the inference that
Congress intended the law to apply to defendants with pending
appeals. He also argues that the FSA should be deemed to fall
within an exception to the Savings Clause, 1 U.S.C. § 109
(2006), for a complete procedural overhaul of an area of law.
However, this court has recently held that the Savings Clause
does apply and that the FSA is not retroactively applicable.
United States v. Bullard, ___ F.3d ___, No. 09-5214, 2011 WL
1718894, at *9-11 (4th Cir. May 6, 2011).
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We review Torres’ sentence for procedural and
substantive reasonableness. Gall v. United States, 552 U.S. 38,
51 (2007). Here, Torres claims only that the district court
failed to calculate his offense level correctly, a procedural
error. We review the district court’s calculation of the
quantity of drugs attributable to a defendant for clear error.
United States v. Randall, 171 F.3d 195, 210 (4th Cir. 1999). “A
defendant’s base offense level under the Guidelines for drug
conspiracy cases is determined by the amount of drugs
“reasonably foreseeable to him within the scope of his unlawful
agreement.” United States v. Lamarr, 75 F.3d 964, 972 (4th Cir.
1996).
Torres contends that Donta Brooks and Tracey Robbins,
co-conspirators who testified at his sentencing, were unreliable
witnesses. The Government must establish the quantity of drugs
attributable to a defendant by a preponderance of the evidence
and may do so through the introduction of relevant and reliable
evidence. United States v. Jones, 31 F.3d 1304, 1316 (4th Cir.
1994). The district court recognized the problems with Brooks’
and Robbins’ testimony, discounting Brooks’ testimony entirely,
and accepting Robbins’ testimony as it related to Torres’ role
as a supplier of crack to Brooks, but not as to the amounts of
crack for which Torres was responsible.
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To make that determination, the district court
considered the quantities of crack seized directly from Torres
and from Brooks, the crack equivalent of the money seized from
each of them, found that Torres had distributed “substantial
amounts” of crack on at least two or three other occasions, and
estimated conservatively that Torres was responsible for at
least one kilogram of crack. “A district court may properly
convert cash amounts linked credibly to the defendant’s purchase
or sale of narcotics” as long as the court does not double count
the proceeds and the drugs, and “[d]irect or hearsay testimony
of lay witnesses . . . can provide sufficiently reliable
evidence of quantity.” United States v. Sampson, 140 F.3d 585,
592 (4th Cir. 1998) (internal citations omitted).
Assuming a price of $1300 per ounce and the use of a
“Detroit ounce” of 26 grams, which Robbins testified about, when
he was arrested Torres had the cash and crack equivalent of 793
grams of crack in his possession. At his arrest, Brooks
possessed the cash and crack equivalent of 304 grams of crack.
Thus, the district court’s estimate of at least one kilogram of
crack was supported by these amounts alone, and we conclude that
the court did not clearly err in finding that Torres was
responsible for one kilogram of crack. Therefore, the court did
not commit any procedural error. The within-Guidelines sentence
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was presumptively reasonable. United States v. Allen, 491 F.3d
178, 193 (4th Cir. 2007).
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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