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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-13450
Non-Argument Calendar
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D.C. Docket No. 4:14-cr-00047-MW-CAS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DERRICK DWAYNE MACKEY,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Florida
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(May 2, 2016)
Before TJOFLAT, WILSON, and WILLIAM PRYOR, Circuit Judges.
PER CURIAM:
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Derrick Dwayne Mackey appeals his 120-month sentence, imposed after
pleading guilty to one count of possession with intent to distribute 500 grams or
more of a mixture or substance containing a detectable amount of cocaine, in
violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(ii)(II). Mackey argues that
the district court erred by relying on the testimony of a cooperating witness to
support his sentencing enhancements.
“In reviewing a sentence under the Sentencing Guidelines, we ‘give due
regard to the opportunity of the district court to judge the credibility of the
witnesses.’” United States v. Alred, 144 F.3d 1405, 1417 (11th Cir. 1998) (quoting
18 U.S.C. § 3742(e)). Thus, we defer to the decision of the fact finder—here, the
district court—as to the credibility of a witness “unless the witness’s testimony [i]s
unbelievable on its face.” United States v. Ramirez-Chilel, 289 F.3d 744, 749
(11th Cir. 2002) (citing United States v. Rivera, 775 F.2d 1559, 1561 (11th Cir.
1985)).
Mackey avers that the testimony of cooperating witness Aisha Lawal was
not credible and thus could not be relied upon by the district court to support the
sentencing enhancements. He points to, inter alia, Lawal’s “extreme motivation to
fabricate evidence” as a “scorned ex-lover” and “inconsistencies as to her former
statement” to a special agent. However, the district court found Lawal credible,
and we must defer to this determination here. Lawal appeared in court to testify,
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which gave the district court judge the opportunity to observe her. Hence, “the fact
finder personally observe[d] the testimony” and was in the best position to assess
her credibility. See id. And, although Mackey characterizes Lawal as a “scorned
ex-lover,” we are not convinced that bias tainted her testimony. As the district
court noted, Lawal was advised of her Fifth Amendment rights and was not
provided any type of immunity from the government in exchange for her
testimony. Nevertheless, she still testified and admitted to her involvement with
drug transactions.
Additionally, independent record evidence corroborated Lawal’s testimony.
Lawal gave specific details about the cocaine trafficking business, testifying that
she saw Mackey take a “brick” of cocaine, then break it down into smaller
packages wrapped in plastic baggies, grease, and electrical tape. This was
precisely what Mackey had in his possession when he was arrested, which gives
corroborative substance to Lawal’s testimony. Therefore, we cannot say Lawal’s
testimony is “unbelievable on its face.” See Rivera, 775 F.2d at 1561 (internal
quotation marks omitted).
For these reasons, the district court did not err in finding Lawal credible.
Given that Mackey solely challenges the enhancements on that basis, we cannot
conclude that the court clearly erred in applying the sentencing enhancements to
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Mackey’s sentence.1 See United States v. Almedina, 686 F.3d 1312, 1315 (11th
Cir. 2012) (clear error review applies to district court’s determination of the
quantity of drugs attributable to a defendant for sentencing purposes); United
States v. Stallings, 463 F.3d 1218, 1220 (11th Cir. 2006) (district court’s
determination for sentencing purposes that a defendant possessed a firearm subject
to clear error review). Accordingly, we affirm.
AFFIRMED.
1
Indeed, it is worth noting that Mackey fails to account for the corroborative evidence
upon which the district court also relied in making its sentencing determinations. The district
court found that holding Mackey accountable for over two kilograms of cocaine was a
“conservative estimate . . . based not on some abstract calculation, but based on what others
physically saw, further corroborated by the audio, further corroborated by other evidence in the
case.” The district court additionally considered testimony from Special Agent Vickers, which it
found credible and reliable, and we have no reason to question that decision.
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