United States v. Plumley

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 06-4585

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

ROGER PLUMLEY,

Defendant - Appellant.

No. 06-4741

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

RODNEY PLUMLEY,

Defendant - Appellant.

Appeals from the United States District Court for the Southern
District of West Virginia, at Beckley. Thomas E. Johnston,
District Judge. (5:05-cr-00224-2; 5:05-cr-00224-1)

Submitted: February 22, 2007 Decided: February 28, 2007

Before WILLIAMS, MOTZ, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.

Troy N. Giatras, THE GIATRAS LAW FIRM, PLLC, Charleston, West
Virginia; Richard M. Gunnoe, Hinton, West Virginia, for Appellants.
zCharles T. Miller, United States Attorney, Miller A. Bushong III,
Assistant United States Attorney, Beckley, West Virginia, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:

Appellants Roger Plumley (Roger) and Rodney Plumley

(Rodney) each pled guilty to conspiracy to distribute fifty grams

or more of cocaine base (crack), a quantity of cocaine, and

hydrocodone in violation of 21 U.S.C. § 846 (2000). The district

court sentenced Roger to 190 months imprisonment and Rodney to 193

months imprisonment. Both received five years supervised release

and a $2000 fine. Rodney contends on appeal that the district

court erred in determining the drug quantity for which he was

accountable. Both appellants argue that the court erred in finding

that they had more than minor or minimal roles in the conspiracy.

We review these factual issues for clear error, United States v.

Tucker, 473 F.3d 556, 560 (4th Cir. 2007), and affirm.

In 2004 and 2005, the Plumley brothers permitted two

separate groups of crack suppliers, one from New York and one from

Ohio, to use their residences in West Virginia as a place to sell

crack. In exchange, they received crack for their own use. Rodney

also sold crack he obtained from the Ohio distributors several

times. In April 2005, acting on a tip from a confidential

informant, state police stopped one of two vehicles traveling

together from Ohio to the Plumleys’ home, and seized 187.5 grams of

crack from the vehicle. Shortly afterward, a search warrant was

executed at the Plumleys’ home, where Rodney and the driver of the

second vehicle were found with 78 grams of crack. Rodney

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challenges the district court’s determination that he was

responsible for the crack seized from the vehicle that was stopped

by the police. We conclude that the district court did not clearly

err in finding that the crack seized from the vehicle was

reasonably foreseeable to Rodney, U.S. Sentencing Guidelines Manual

§ 1B1.3(a)(1)(B), (2) (2005), and attributable to him as relevant

conduct.

We further conclude that the district court’s

determination that neither Roger nor Rodney had a mitigating role

in the conspiracy was not clearly erroneous. United States v.

Pratt, 239 F.3d 640, 646 (4th Cir. 2001) (inquiry is whether

defendant’s conduct is material or essential to commission of

offense).

We therefore affirm the sentences imposed by the district

court. 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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