UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 06-4975

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

TOBY LEE LOVE,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern

District of Virginia, at Norfolk. Jerome B. Friedman, District

Judge. (2:05-cr-00082-JBF)

Submitted: July 18, 2007 Decided: July 31, 2007

Before WILKINSON, MOTZ, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

James B. Melton, Chesapeake, Virginia, for Appellant. Chuck

Rosenberg, United States Attorney, Darryl J. Mitchell, Assistant

United States Attorney, Norfolk, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Toby Lee Love was convicted by a jury of one count of

conspiracy to possess with intent to distribute and to distribute

cocaine and marijuana as well as one count of conspiracy to commit

money laundering, in violation of 18 U.S.C. §§ 2; 1956; 1957; 21

U.S.C. §§ 841(a)(1), (b)(1)(A); 846 (2000). Love was sentenced by

the district court to 210 months’ imprisonment. On appeal, Love

contends his sentence is unreasonable as it “was based upon an

irrational determination by the jury.” Finding no error, we

affirm.

Love’s argument on appeal centers on his assertion that

the testimony of the Government’s witnesses was inconsistent as to

drug quantities. He asserts the verdict was inconsistent because

it attributed five kilograms of cocaine to him without attributing

a specific quantity of marijuana. As the testimony regarding the

fifth kilogram of cocaine involved a trip in which one pound of

marijuana was also said to have been transported, Love reasons that

the jury’s failure to find a specific quantity of marijuana

established that the jury did not believe the third trip occurred.

Love therefore concludes that the greatest quantity of cocaine the

jury could have consistently attributed to him was four kilograms.

However, one witness testified that Love transported

approximately five kilograms of cocaine during the course of three

trips. The witness’ testimony established that the witness was the
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leader of the conspiracy and therefore aware of all of the

transactions occurring within the course of the

conspiracy—including Love’s. Thus, there was evidence upon which

the jury could have based its findings. As witness credibility is

solely within the province of the jury, we will not reassess the

credibility of testimony. See United States v. Saunders, 886 F.2d

56, 60 (4th Cir. 1989).

Moreover, even if the verdict was inconsistent, such

inconsistencies “in criminal trials need not be set aside, but may

instead be viewed as a demonstration of the jury’s leniency.”

United States v. Powell, 469 U.S. 57, 61 (1984). Therefore,

because the district court appropriately treated the Guidelines as

advisory, properly calculated and considered the advisory guideline

range, and weighed the relevant 18 U.S.C. § 3553(a) (2000) factors,

we conclude Love’s 210-month sentence, which was below the

statutory maximum and at the bottom of the advisory guideline

range, is reasonable. See United States v. Hughes, 401 F.3d 540,

546-47 (4th Cir. 2005); see also United States v. Green, 436 F.3d

449, 457 (4th Cir.) (stating a sentence imposed within a properly

calculated guideline range is presumptively reasonable), cert.

denied, 126 S. Ct. 2309 (2006).

Accordingly, we affirm the judgment of the district

court. We dispense with oral argument because the facts and legal
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contentions are adequately presented in the materials before the

court and argument would not aid in the decisional process.

AFFIRMED