United States v. George Martin

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-4085

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

GEORGE MARTIN,

Defendant - Appellant.

Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg. Irene M. Keeley,
District Judge. (1:05-cr-00021-IMK-JSK-1)

Submitted: October 27, 2011 Decided: November 29, 2011

Before TRAXLER, Chief Judge, and GREGORY and KEENAN, Circuit
Judges.

Affirmed by unpublished per curiam opinion.

Scott C. Brown, SCOTT C. BROWN LAW OFFICE, Wheeling, West
Virginia, for Appellant. William J. Ihlenfeld, II, United States
Attorney, Zelda E. Wesley, Assistant United States Attorney,
Clarksburg, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

George Martin appeals the 270-month sentence imposed

on remand for resentencing following his jury conviction of one

count of conspiracy to possess with intent to distribute and to

distribute in excess of fifty grams of cocaine base, in

violation of 21 U.S.C. § 846 (2006); and two counts of

distribution of cocaine base, in violation of 21 U.S.C.

§§ 841(a)(1), (b)(1)(C). See United States v. Martin, 278 F.

App’x 248 (4th Cir. 2008). On appeal, Martin argues that the

district court erred in sentencing him based on a drug amount

greater than that found by the jury and in applying a three-

level enhancement for his role in the offense. We affirm.

We review a district court’s application of the

Guidelines during sentencing de novo and its factual findings

for clear error. United States v. Mehta, 594 F.3d 277, 281 (4th

Cir.), cert. denied, 131 S. Ct. 279 (2010). A district court

must make relevant factual findings at sentencing based on its

view of the preponderance of the evidence. United States v.

Young, 609 F.3d 348, 357 (4th Cir. 2010).

We first hold that the district court did not clearly

err in determining that Martin was responsible for 11.23

kilograms of cocaine base. Although the jury attributed to

Martin fifty grams or more of cocaine base, “[t]he district

court was free to consider, as it would with any . . . acquitted

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conduct, whether the government could establish a higher

quantity under a preponderance of the evidence standard.” Id.

Martin argues that the district court erred in crediting the

recollections of known drug users and the expert witness that

calculated a drug weight based on their testimonies. However,

we give great deference to a district court’s credibility

determinations, see United States v. Layton, 564 F.3d 330, 334

(4th Cir. 2009), and do not fault the district court’s explicit

credibility findings where the witnesses gave detailed

descriptions on which the duly qualified expert based his

conservative estimates.

We likewise hold that the district court did not

clearly err in applying a three-level leadership enhancement.

Pursuant to U.S. Sentencing Guidelines Manual (“USSG”)

§ 3B1.1(b) (2010), a defendant qualifies for a three-level

enhancement if he was “a manager or supervisor (but not an

organizer or leader) and the criminal activity involved five or

more participants or was otherwise extensive.” USSG § 3B1.1(b).

In determining a defendant’s leadership role, a court should

consider seven factors:

the exercise of decision making authority, the nature
of participation in the commission of the offense, the
recruitment of accomplices, the claimed right to a
larger share of the fruits of the crime, the degree of
participation in planning or organizing the offense,
the nature and scope of the illegal activity, and the
degree of control and authority exercised over others.

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USSG § 3B1.1, cmt. n.4; see also United States v. Sayles, 296

F.3d 219, 224 (4th Cir. 2002).

Martin does not dispute that he was active in a

conspiracy involving five or more participants; he merely argues

that the evidence did not show that he acted as a manager or

supervisor. To the contrary, the district court heard testimony

that Martin exercised control over a middleman, a lookout, and

several runners to whom he “fronted” cocaine base. Accordingly,

we conclude that the district court did not clearly err in

finding by a preponderance of the evidence that Martin was a

manager or supervisor of the conspiracy.

We therefore affirm Martin’s sentence. We dispense

with oral argument because the facts and legal contentions are

adequately presented in the material before the court and

argument would not aid the decisional process.

AFFIRMED