UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4291
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JERRY DISMUKES,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. Thomas E. Johnston,
District Judge. (2:09-cr-00214-1)
Submitted: October 31, 2011 Decided: November 21, 2011
Before DAVIS, KEENAN, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Matthew A. Victor, VICTOR, VICTOR & HELGOE, LLP, Charleston,
West Virginia, for Appellant. R. Booth Goodwin II, United
States Attorney, Monica L. Dillon, Assistant United States
Attorney, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jerry Dismukes pled guilty to distributing five grams
or more of cocaine base (“crack”) and was sentenced to 105
months’ imprisonment. On appeal, he raises three issues: (1)
whether the district court erred by denying his motion to
withdraw his guilty plea; (2) whether the court erred by
enhancing his sentence by converting cash into crack cocaine for
purposes of relevant conduct and imposing a firearm enhancement;
and (3) whether his sentence was unreasonable in light of the 18
U.S.C. § 3553(a) (2006) factors. For the reasons that follow,
we affirm.
First, we conclude that the district court did not
abuse its discretion in denying Dismukes’ motion to withdraw his
guilty plea. United States v. Ubakanma, 215 F.3d 421, 424 (4th
Cir. 2000) (stating review standard). We note that the court
held a hearing on the matter, analyzed the motion addressing
each of the six factors discussed in our decision in United
States v. Moore, 931 F.2d 245, 248 (4th Cir. 1991), and found
only one factor weighed in favor of Dismukes. Although all the
factors in Moore must be given appropriate weight, the key in
determining whether a motion to withdraw should be granted is
whether the plea hearing was properly conducted under Fed. R.
Crim. P. 11. United States v. Puckett, 61 F.3d 1092, 1099 (4th
Cir. 1995). We conclude that Dismukes’ plea hearing was
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conducted in compliance with Rule 11 and that Dismukes failed to
show a fair and just reason to support his request to withdraw
under Fed. R. Crim. P. 11(d)(2)(B).
Next, we conclude that the district court did not
clearly err in finding Dismukes responsible for approximately
226 grams of crack as part of his relevant conduct. United
States v. Randall, 171 F.3d 195, 210 (4th Cir. 1999) (providing
review standard). The court made a reasonable estimate of the
crack involved. See U.S. Sentencing Guidelines Manual (“USSG”)
§ 2D1.1, comment. (n.12) (2010); United States v. D’Anjou, 16
F.3d 604, 614 (4th Cir. 1994). The court converted the over
$10,000 in cash which was found in Dismukes’ possession in a
hotel room, into an approximate amount of crack cocaine for
purposes of determining drug weight. Moreover, as noted at the
sentencing hearing, the court could have found Dismukes
responsible for twice as much crack based on information in the
presentence report.
Likewise, we conclude that the district court did not
err in determining that Dismukes’ sentence should be enhanced
because of the firearm he possessed. See United States v.
Manigan, 592 F.3d 621, 631 (4th Cir. 2010). The firearm
enhancement is proper if the weapon was present “unless it is
clearly improbable that the weapon was connected to the
offense.” USSG § 2D1.1, comment. (n.3). A pistol was found in
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Dismukes’ vehicle, which, along with the crack, was driven from
Michigan to West Virginia for the purpose of distributing crack
cocaine. Moreover, the court found that the pistol could have
been accessed relatively easily. Under these circumstances, it
was not clearly improbable that the weapon was related to the
offense, Manigan, 592 F.3d 621, 631, and we note that a
sentencing court has broad discretion to apply the enhancement.
United States v. Harris, 128 F.3d 850, 852 (4th Cir. 1997).
Finally, we conclude that Dismukes’ sentence, imposed
within his properly calculated Sentencing Guidelines range, was
reasonable and did not constitute an abuse of discretion, Gall
v. United States, 552 U.S. 38, 41, 51 (2007), and that the court
adequately explained the sentence in light of the § 3553(a)
factors. Id. at 49-51; United States v. Lynn, 592 F.3d 572, 576
(4th Cir. 2010). We also note that sentences imposed within a
properly calculated sentencing range are entitled to a
presumption of reasonableness on appeal. United States v. Abu
Ali, 528 F.3d 210, 261 (4th Cir. 2008). Because Dismukes’
claims fail on appeal, we affirm his 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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