UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4750
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TERRY WAINWRIGHT MITCHELL,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Joseph F. Anderson, Jr., District
Judge. (3:09-cr-00501-JFA-21)
Submitted: August 29, 2012 Decided: August 31, 2012
Before WILKINSON, KING, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Matthew M. Robinson, ROBINSON & BRANDT, P.S.C., Covington,
Kentucky, for Appellant. William N. Nettles, United States
Attorney, Stacey D. Haynes, Assistant United States Attorney,
Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Terry Wainwright Mitchell was convicted by a jury of
conspiracy to possess with intent to distribute and distribute
five kilograms or more of powder cocaine and fifty grams or more
of cocaine base (crack), 21 U.S.C. § 846 (2006) (Count 1), and
three counts of using a telephone to facilitate a felony (Counts
60-62), 21 U.S.C. § 843(b) (2006). The verdict form included a
special interrogatory which required the jury to decide the
quantity of crack and cocaine specifically attributable to
Mitchell; the jury found that Mitchell was responsible for the
charged amounts.
In the presentence report, the probation officer noted
the jury’s finding that fifty grams of crack and five kilograms
of cocaine were reasonably foreseeable to Mitchell, and based
the offense calculation on those drug amounts. At the same
time, the probation officer calculated a lower quantity based on
his analysis of the trial testimony, which excluded certain drug
amounts to avoid double counting. At the sentencing hearing,
acting pro se, Mitchell challenged the amount of drugs
attributed to him for Guidelines purposes. The district court
decided that it was bound to accept the jury’s finding of drug
quantities on the special verdict form and overruled his
objection. The court adopted the recommendation in the
presentence report and determined that Mitchell’s advisory
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Guidelines range was 135-168 months. The court sentenced
Mitchell to a term of 152 months imprisonment. Mitchell appeals
his sentence, arguing that the district court erred in failing
to make an individualized determination of the quantity of drugs
attributable to him for Guidelines purposes. We affirm.
The district court’s decision that it was constrained
to use the drug amounts from the verdict form, and lacked the
authority to make an independent determination of Mitchell’s
base offense level under U.S. Sentencing Guidelines Manual
§ 2D1.1 (2010), is a legal determination; thus, we review it de
novo. * United States v. Davenport, 445 F.3d 366, 370 (4th Cir.
2006). Because the jury found that fifty grams of crack or more
and five kilograms of cocaine or more were attributable to
Mitchell, his statutory sentencing range was ten years to life
under § 841(b)(1)(A). United States v. Collins, 415 F.3d 304,
313 (4th Cir. 2005); United States v. Promise, 255 F.3d 150, 156
(4th Cir. 2001).
However, “beyond establishing the maximum sentence
that could be imposed on [the defendant], the jury’s drug-
quantity determination placed no restraints on the district
court’s authority to find facts relevant to sentencing.” United
*
Because at sentencing Mitchell contested the quantity of
drugs attributed to him, he preserved the issue for review.
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States v. Young, 609 F.3d 348, 357 (4th Cir. 2010); see also
United States v. Brooks, 524 F.3d 549, 560 n.20 (4th Cir. 2008)
(“sentencing court is free to calculate the advisory Guidelines
range using facts that it finds by a preponderance of the
evidence, including individualized drug quantities, . . . within
the confines of the applicable statutory range”). The current
sentencing process requires the district court to “begin all
sentencing proceedings by correctly calculating the applicable
Guidelines range.” Gall v. United States, 552 U.S. 38, 49-50
(2007). To do so, “the district court must make relevant
factual findings based on the court’s view of the preponderance
of the evidence.” Young, 609 F.3d at 357.
Mitchell argues that the district court should have
adopted the probation officer’s lower estimate of the drug
quantity attributable to him. Using the drug quantities from
the jury’s verdict form, the district court calculated a
Guidelines range of 135-168 months. Mitchell assumes that the
court could have imposed a sentence as low as 120 months, the
statutory minimum.
However, in fact, the district court was not free to
attribute a lesser quantity of crack and cocaine to Mitchell for
Guidelines purposes than the jury did for purposes of
determining the statutory sentencing range. A finding of less
than fifty grams of crack or less than five kilograms of cocaine
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would have violated the non-contradiction principle which
prohibits the district court from finding facts by a
preponderance of the evidence that contravene the jury’s finding
beyond a reasonable doubt. See United States v. Curry, 461 F.3d
452, 460-61 (4th Cir. 2006) (vacating variance sentence based on
finding counter to evidence and verdict); United States v.
Washburn, 444 F.3d 1007, 1014 (8th Cir. 2006) (loss amount in
special verdict not disprovable by preponderance of the
evidence); United States v. Campos, 362 F.3d 1013, 1015-16 (8th
Cir. 2004) (vacating sentence where district court found lesser
amount of drugs than jury’s verdict). Therefore, the district
court did not err in adopting the drug quantity determined by
the jury.
We therefore affirm the district court’s judgment. 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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