UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 06-5052

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

JONATHAN JIMENEZ,

Defendant - Appellant.

Appeal from the United States District Court for the Western

District of Virginia, at Harrisonburg. Samuel G. Wilson, District

Judge. (5:01-cr-30058-SGW)

Submitted: June 29, 2007 Decided: July 25, 2007

Before KING, GREGORY, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

R. Darren Bostic, BOSTIC & BOSTIC, P.C., Harrisonburg, Virginia,

for Appellant. John L. Brownlee, United States Attorney, Ray B.

Fitzgerald, Jr., Assistant United States Attorney, Charlottesville,

Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Jonathan Jimenez was convicted by a jury of conspiracy to

distribute more than fifty grams of crack cocaine, in violation of

21 U.S.C. § 846 (2000), and sentenced to life imprisonment. We

affirmed Jimenez’s conviction but vacated his sentence and remanded

for re-sentencing consistent with United States v. Booker, 543

U.S. 220 (2005). See United States v. Jimenez, No. 02-4511 (4th

Cir. July 28, 2005) (unpublished).

On remand, the district court conducted a re-sentencing

hearing and determined that Jimenez’s total offense level remained

at 43; with a criminal history category I, the resulting guideline

range remained at life imprisonment. After considering the factors

set forth in 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2007), the

district court imposed a below-guidelines sentence of 360 months

imprisonment. Jimenez noted a timely appeal. 

Jimenez claims, first, that the district court erred in

attributing to him over 1.5 kilograms of crack. Jimenez also

asserts that the probation officer derived the quantity of crack

cocaine from a “guess” after hearing testimony and speaking to an

investigator.

We review the district court’s calculation of the

quantity of drugs attributable to a defendant for sentencing

purposes for clear error. See United States v. Tucker, 473 F.3d

556, 560 (4th Cir. 2007) (stating standard of review); United
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States v. Randall, 171 F.3d 195, 210 (4th Cir. 1999). In

calculating drug amounts, the district court may consider any

relevant information, provided that the information has sufficient

indicia of reliability to support its accuracy. United States v.

Uwaeme, 975 F.2d 1016, 1021 (4th Cir. 1992). 

Here, the probation officer based her calculation on the

testimony of a number of witnesses and on her own interviews.

Specifically, at Jimenez’s trial, the evidence established that the

co-conspirators purchased one kilogram of powder cocaine each week

in New York and transported it to Virginia, where it would be

processed into crack cocaine, for a total of fifty-two kilograms

over the period charged in the indictment. According to one

witness, Jimenez traveled to New York every two weeks to purchase

powder cocaine, in quantities of no less than 1000 grams, that he

would then “cook” into crack upon his return to Harrisonburg.

Based on this and other testimony, the probation officer stated

that her estimate of twelve kilograms was extremely conservative.

Based on this evidence, we find that the district court did not

clearly err in finding that Jimenez was responsible for more than

1.5 kilograms of crack cocaine. To the extent that Jimenez

challenges the probation officer’s reliance on the testimony of coconspirators and drug users, it is well established that the

question of witness credibility is within the sole province of the
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jury and not susceptible to review. United States v. Saunders, 886

F.2d 56, 60 (4th Cir. 1989).

Next, Jimenez challenges the four-level enhancement he

received for being a leader or organizer of the conspiracy. See

U.S. Sentencing Guidelines Manual § 3B1.1(a) (2001). 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). 

To qualify for a four-level increase under § 3B1.1(a), a

defendant must have been “an organizer or leader of a criminal

activity that involved five or more participants or was otherwise

extensive.” Here, the testimony established that Jimenez

supervised at least six individuals in the distribution of crack

cocaine in the Harrisonburg area and maintained two apartments and

multiple vehicles to assist in distribution efforts. We find no

clear error in the district court’s application of the four-level

enhancement for Jimenez’s leadership role.

Next, Jimenez asserts that the presumption of

reasonableness accorded by this court to sentences within the

sentencing guidelines range renders the guidelines “effectively

mandatory.” Contrary to his assertion, however, the district

court here clearly recognized and exercised its discretion to

impose a sentence outside of the guidelines range, and in fact did

so. Accordingly, this claim fails as well.
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Finally, Jimenez argues that he should be sentenced under

the penalties applicable to powder cocaine rather than crack

cocaine. However, this court has rejected Jimenez’s argument that

the increased punishment for crack may be ignored. See United

States v. Eura, 440 F.3d 625, 634 (4th Cir. 2006) (finding that

district court’s rejection of 100:1 crack to powder cocaine ratio

is unreasonable and “impermissibly usurps Congress’s judgment about

the proper sentencing policy for cocaine offenses”) (internal

quotation marks and citation omitted), petition for cert. filed, __

U.S.L.W. __ (U.S. June 20, 2006) (No. 05-11659). 

Accordingly, we affirm Jimenez’s sentence. 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