UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 05-4779

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

TROY LAMONT MURPHY,

Defendant - Appellant.

No. 05-4808

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

TIMOTHY LAFON MURPHY, a/k/a TJ,

Defendant - Appellant.

Appeals from the United States District Court for the Eastern

District of North Carolina, at Raleigh. Louise W. Flanagan, Chief

District Judge. (CR-04-241)

Submitted: August 30, 2006 Decided: October 4, 2006

Before MICHAEL, MOTZ, and KING, Circuit Judges.
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Affirmed by unpublished per curiam opinion.

Thomas K. Maher, WINSTON & MAHER, Chapel Hill, North Carolina;

James M. Ayers II, AYERS, HAIDT & TRABUCCO, P.A., New Bern, North

Carolina, for Appellants. Anne Margaret Hayes, Assistant United

States Attorney, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
1

Anders v. California, 386 U.S. 738 (1967).

2

U.S. Sentencing Guidelines Manual (2004) (USSG).

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PER CURIAM:

Timothy Lafon Murphy and his brother, Troy Lamont Murphy

were convicted by a jury of one count of conspiracy to distribute

and to possess with intent to distribute more than fifteen

kilograms of cocaine and more than 1.5 kilograms of crack cocaine,

in violation of 21 U.S.C. §§ 841(a)(1), 846 (2000). Troy was also

convicted of one count of distribution of crack cocaine, in

violation of 21 U.S.C. § 841(a)(1). On appeal, counsel have filed

an Anders1

 brief, in which they state there are no meritorious

issues for appeal, but suggest that the district court erred in

enhancing Timothy’s offense level for his role in the offense and

for possession of a dangerous weapon, and erred in enhancing Troy’s

offense level for obstruction of justice by intimidating witnesses.

Timothy and Troy each filed a pro se supplemental brief. The

Government declined to file a brief. We affirm.

In determining the sentencing range for Timothy under the

Sentencing Guidelines,2 the probation officer attributed a total of

7848.85 grams of crack cocaine and 39,000 grams of powder cocaine,

which converted to a marijuana equivalency of 164,777 kilograms.

This quantity yielded a base offense level of thirty-eight pursuant

to USSG § 2D1.1(c)(1). The probation officer also recommended a

two-level enhancement pursuant to USSG § 2D1.1(b)(1) because
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Timothy possessed a dangerous weapon in connection with the

offense, and a four-level enhancement pursuant to USSG § 3B1.1(a)

because Timothy was an organizer or leader of an extensive criminal

enterprise that involved five or more participants. The total

offense level of forty-four was reduced to forty-three, the maximum

recognized in the Guidelines. Timothy’s prior criminal activity

resulted in a total of seventeen criminal history points, placing

him in criminal history category VI, which was also mandated by his

career offender status. The resulting sentencing range based on a

total offense level of forty-three and criminal history category VI

was life imprisonment. At sentencing, the district court overruled

Timothy’s objections to the enhancements and imposed a life

sentence.

In determining the sentencing range for Troy, the

probation officer attributed a total of 1991.1 grams of crack

cocaine and 627.575 grams of powder cocaine, which converted to a

marijuana equivalency of 39,947.515 kilograms. This quantity

yielded a base offense level of thirty-eight pursuant to USSG

§ 2D1.1(c)(1). The probation officer also recommended a two-level

enhancement pursuant to USSG § 3C1.1 because Troy intimidated

witnesses. Troy’s prior criminal activity resulted in a total of

nine criminal history points, placing him in criminal history

category IV. The resulting sentencing range based on a total

offense level of forty and criminal history category IV was 360
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months to life imprisonment. The district court rejected Troy’s

objections and sentenced him to 360 months of imprisonment.

Counsel first suggests that the district court erred in

enhancing Timothy’s offense level for a leadership role in the

offense and for possession of a dangerous weapon. A district

court’s determination of the defendant’s role in the offense is

reviewed for clear error. United States v. Sayles, 296 F.3d 219,

224 (4th Cir. 2002). A four-level adjustment for role in the

offense is appropriate when “the defendant was an organizer or

leader of a criminal activity that involved five or more

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

An enhancement for an aggravating role requires, at a

minimum, that “the defendant must have been the organizer, leader,

manager, or supervisor of one or more other participants.” USSG

§ 3B1.1, comment. (n.2); United States v. Harriott, 976 F.2d 198,

200 (4th Cir. 1992) (two-level enhancement appropriate where

defendant directed activities of one other person); United

States v. Kincaid, 964 F.2d 325, 329 (4th Cir. 1992) (same).

Factors distinguishing a leadership or organizational role from

lesser roles include exercise of decision making authority, the

nature of the participation in the offense, recruitment of

accomplices, the claimed right to a larger share of the proceeds,

the degree of participation in planning or organizing the offense,

the nature and scope of the illegal activity, and the degree of
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control and authority exercised. USSG § 3B1.1, comment. (n.4). In

this case, the district court noted these factors and concluded

that the enhancement was justified by the evidence at trial. Our

review of the record convinces us that the district court’s

decision to impose the four-level enhancement was correct.

The Guidelines provide for a two-level increase in a

defendant's base offense level “[i]f a dangerous weapon (including

a firearm) was possessed.” USSG § 2D1.1(b)(1). Application Note

3 of the Commentary to § 2D1.1 states that “[t]he adjustment should

be applied if the weapon was present, unless it is clearly

improbable that the weapon was connected with the offense.” USSG

§ 2D1.1(b)(1), comment. (n.3). “In order to prove that a weapon

was present, the Government need show only that the weapon was

possessed during the relevant illegal drug activity.” United

States v. McAllister, 272 F.3d 228, 234 (4th Cir. 2001). The

district court imposed the enhancement based on testimony that

Timothy held a knife to the throat of a person he apparently

suspected of stealing a quantity of cocaine. We conclude that the

district court did not err in imposing this enhancement.

Counsel next asserts that the district court erred in

enhancing Troy’s offense level for obstruction of justice. We

review a district court’s determination that a defendant obstructed

justice for clear error. United States v. Hughes, 401 F.3d 540,

560 (4th Cir. 2005). The Sentencing Guidelines provide for a
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two-level increase in a defendant’s offense level “[i]f (A) the

defendant willfully obstructed or impeded, or attempted to obstruct

or impede, the administration of justice during the course of the

investigation, prosecution, or sentencing of the instant offense of

conviction, and (B) the obstructive conduct related to (i) the

defendant’s offense of conviction and any relevant conduct.” USSG

§ 3C1.1.

“[T]hreatening, intimidating, or otherwise unlawfully

influencing a co-defendant, witness, or juror, directly or

indirectly, or attempting to do so” is specifically listed as an

example of conduct for which the enhancement is appropriate. USSG

§ 3C1.1, comment. (n.4(a)). “To apply the obstruction-of-justice

enhancement, the district court must find that a defendant

consciously act[ed] with the purpose of obstructing justice.”

United States v. Stewart, 256 F.3d 231, 253 (4th Cir. 2001)

(internal quotation marks and citation omitted). The district

court imposed the enhancement based on testimony that Troy

threatened a co-defendant and coerced him into signing a letter

exonerating Troy, and attempted to verbally intimidate other

witnesses. Our review of the record demonstrates that the facts

supporting the enhancement were sufficiently established.

In accordance with Anders, we have reviewed the record in

this case and have found no meritorious issues for appeal. We have

considered the arguments asserted in the pro se briefs submitted by
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Timothy and Troy and find them to be without merit. We therefore

affirm the convictions and sentences. We deny Troy’s motion to

proceed pro se as moot. This court requires that counsel inform

their client, in writing, of the right to petition the Supreme

Court of the United States for further review. If the client

requests that a petition be filed, but counsel believes that such

a petition would be frivolous, then counsel may move in this court

for leave to withdraw from representation. Counsel’s motion must

state that a copy thereof was served on the client.

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