IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-50181
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WARREN STALBIRD; MARSHALL VINCENT JOLLEY,
Defendants-Appellants.
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Appeals from the United States District Court
for the Western District of Texas
USDC No. SA-99-CR-359-2
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January 29, 2002
Before KING, Chief Judge, JOLLY and DeMOSS, Circuit Judges.
PER CURIAM:*
Warren Stalbird appeals the 160-month sentence imposed by
the district court after he was convicted of conspiracy to
manufacture and distribute methamphetamine. Citing Apprendi v.
New Jersey, 530 U.S. 466 (2000), he argues for the first time on
appeal that the district court failed to charge the jury with an
essential element of the crime of conviction, namely the drug
quantity upon which his sentence was based. Because Stalbird did
not raise his Apprendi claim in the district court, this court’s
review is limited to plain error. See United States v. Meshack,
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 01-50181
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225 F.3d 556, 575 (5th Cir. 2000), cert. denied, 531 U.S. 1100,
amended on rehearing, 244 F.3d 367 (5th Cir.), cert. denied, 122
S. Ct. 142 (2001); Fed. R. Crim. P. 52(b).
Apprendi is limited to facts that increase a criminal
penalty beyond the statutory maximum authorized by the jury’s
verdict. See United States v. Keith, 230 F.3d 784, 787 (5th Cir.
2000), cert. denied, 121 S. Ct. 1163 (2001). Stalbird’s
statutory maximum penalty was 20 years of imprisonment under 21
U.S.C. § 841(b)(1)(C). See United States v. Doggett, 230 F.3d
160, 164-65 (5th Cir. 2000), cert. denied, 121 S. Ct. 1152
(2001). Because his sentence of 160 months of imprisonment did
not exceed that statutory maximum provided by the statute,
Stalbird’s Apprendi argument is without merit. See Keith, 230
F.3d at 787.
Stalbird also argues that various amounts of methamphetamine
should not have been included as relevant conduct in determining
his sentence. He argues that he should not have been held
accountable for 283.5 grams of methamphetamine that was
manufactured in early 1997. He also argues that 595.35 grams of
methamphetamine produced in May and June of 1996 should not have
been attributed to him because the "only evidence ... as it
relates to this amount is that at one point he was present."
The district court did not assess Stalbird the 283.5 grams
of methamphetamine he complains of, but rather the court lowered
Stalbird’s offense level by two levels after the Government
conceded that such amount should not have been attributed to
Stalbird. With respect to the 595.35 gram-amount, even if the
No. 01-50181
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court had agreed with Stalbird and had subtracted the 595.35
gram-amount from the calculation of the methamphetamine
attributable to him, there remained over 800 grams of
methamphetamine attributable to Stalbird from his various other
criminal activities. Any amount over 500 grams results in an
offense level of 32. Thus, any error in including the 595.35
gram-amount was harmless. Cf. United States v. Brito, 136 F.3d
397, 416 (5th Cir. 1998). Stalbird’s conviction and sentence are
AFFIRMED.
Marshall Vincent Jolley appeals the 240-month sentence
imposed by the district court after he was convicted of
conspiracy to manufacture and distribute methamphetamine and
possession with the intent to distribute methamphetamine. He
argues that the district court erred in determining that he was a
"leader or organizer" of the methamphetamine conspiracy because
the evidence showed only that there was a loose group of
independent people in various segments of the methamphetamine
business who had buyer/seller relationships or equal partnerships
with him. This court reviews such a factual finding for clear
error. See United States v. Thomas, 120 F.3d 564, 574 (5th Cir.
1997).
"If the defendant was an organizer or leader of a criminal
activity that involved five or more participants or was otherwise
extensive" a four-level increase in his offense level is
warranted. See U.S.S.G. § 3B1.1(a). Proof that the defendant
had a supervisory role with respect to only one other culpable
participant is sufficient to make the defendant eligible for the
No. 01-50181
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enhancement. United States v. Okoli, 20 F.3d 615, 616 (5th Cir.
1994). Examining the information before to the district court,
including the trial testimony of Zora Fewell and Timothy Sanchez,
we hold that the district court did not clearly err by enhancing
Jolley’s sentence based on a supervisory role.
Jolley also argues that the district court erred by
increasing his sentence based on a determination that he had
obstructed justice. "A finding of obstruction of justice under
§ 3C1.1 is a factual finding reviewed for clear error." United
States v. Upton, 91 F.3d 677, 687 (5th Cir. 1996). In making
factual determinations, it is appropriate for a district court to
draw reasonable inferences. See United States v. Brown, 54 F.3d
234, 242 (5th Cir. 1995). Given the information before it, the
district court could reasonably have inferred that Jolley coerced
Bruce Martin into not testifying at trial. The court thus did
not clearly err in assessing the enhancement. See Upton, 91 F.3d
at 687. The judgment of the district court is AFFIRMED.