UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 06-4367

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

LAMONTEZ SENTELL LURRY, a/k/a Chopper,

Defendant - Appellant.

Appeal from the United States District Court for the Northern

District of West Virginia, at Martinsburg. David A. Faber, Chief

District Judge, sitting by designation. (3:04-cr-00027-WCB-DJ)

Submitted: November 30, 2006 Decided: December 27, 2006

Before WILLIAMS, MOTZ, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

John G. Hackney, Jr., Charleston, West Virginia, for Appellant.

Rita R. Valdrini, Acting United States Attorney, Thomas O. Mucklow,

Assistant United States Attorney, Martinsburg, West Virginia, for

Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Lamontez Sentell Lurry pled guilty to distribution of

less than five grams of cocaine base (“crack”), in violation of 21

U.S.C. § 841(b)(1)(C) (2000). Lurry’s plea agreement indicated the

parties were unable to stipulate a drug quantity to which Lurry

would be held responsible for sentencing purposes and provided

relevant conduct would be litigated before the district court.

Lurry alleges aspects of his sentencing were improper. Finding no

error, we affirm. 

Lurry’s presentence report (“PSR”) recommended a base

offense level of thirty-six, reflecting 500 grams of crack. See

U.S. Sentencing Guidelines Manual (“USSG”) § 2D1.1(c)(2) (2004).

However, following a two-day sentencing hearing in which ten

witnesses testified concerning relevant conduct, the district court

found Lurry was responsible for 432.75 grams of crack. Therefore,

the court found Lurry’s base offense level was thirty-four. See

USSG § 2D1.1(c)(3). The district court also granted Lurry a twolevel adjustment for acceptance of responsibility. See USSG

§ 3E1.1. Based on a total offense level of thirty-two and a

criminal history category of IV, the district court determined the

applicable range under the sentencing guidelines was 168 to 210

months’ imprisonment. See USSG Ch. 5, Pt. A (sentencing table).

The district court sentenced Lurry to 180 months’ imprisonment, and

he appealed.
1

Lurry does not appeal his conviction.

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Lurry argues the district court imposed an unreasonable

sentence because it erroneously held him responsible for 432.75

grams of crack and improperly denied him an offense level reduction

for a mitigating or minor role in the offense.1

 

After United States v. Booker, 543 U.S. 220 (2005), a

sentencing court is no longer bound by the range prescribed by the

sentencing guidelines. See United States v. Hughes, 401 F.3d 540,

546 (4th Cir. 2005). However, sentencing courts are still required

to calculate and consider the guideline range prescribed thereby as

well as the factors set forth in 18 U.S.C.A § 3553(a) (West 2000 &

Supp. 2006). Id. We will affirm a post-Booker sentence if it is

both reasonable and within the statutorily prescribed range. Id. at

546-47; see also United States v. Green, 436 F.3d 449, 457 (4th

Cir.), cert. denied, 126 S. Ct. 2309 (2006) (stating a sentence

imposed within a properly calculated guideline range is

presumptively reasonable). 

When reviewing the district court’s application of the

sentencing guidelines, we review findings of fact for clear error

and questions of law de novo. Green, 436 F.3d at 456. A sentence

is unreasonable if based on an error in construing or applying the

sentencing guidelines. Id. at 456-57. In calculating the

guideline range for each co-conspirator, “all reasonably

foreseeable acts and omissions of others in furtherance of the
2One ounce converts to 28.35 grams. See USSG § 2D1.1(c),

comment. (n.10). Therefore, fifteen ounces convert to 425.25

grams.

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jointly undertaken criminal activity, that occurred during the

commission of the offense of conviction, in preparation for that

offense, or in the course of attempting to avoid detection or

responsibility for that offense” are to be included. USSG

§ 1B1.3(a)(1)(B).

Lurry contends the district court overstated the drug

quantity attributable to him and confused powder cocaine with

crack. Of the 432.75 grams of crack the district court found

attributable to Lurry, 425.25 grams were based upon Albert Byrd’s

testimony. Byrd testified he pooled funds from the members of

their crack distribution conspiracy and “purchased some drugs.”

Byrd initially stated he purchased “[p]robably like nine ounces”

with the pooled funds, but then agreed he had previously told an

officer he purchased fifteen ounces.2 In his prior interview, Byrd

indicated he cooked the cocaine he purchased, presumably referring

to powder cocaine, although he did not indicate whether he cooked

the fifteen ounces referenced above.

We need not determine whether the district court’s

factual finding concerning relevant conduct was clearly erroneous,

because any error was harmless. In United States v. Ricco, 52 F.3d

58, 63 (4th Cir. 1995), we approved a conversion ratio of 100 grams

of powder cocaine yielding eighty-eight grams of crack. Applying
3These amounts derive only from the information provided by

Byrd. Lurry does not challenge the additional 7.5 grams found by

the district court based upon testimony of two other witnesses.

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this formula, we find fifteen ounces of powder cocaine yield 374.22

grams of crack and nine ounces of powder cocaine yield 224.53 grams

of crack. Both amounts3

 are within the range that produces a base

offense level of thirty-four. See USSG § 2D1.1(c)(3) (grouping

amounts at least 150 grams and less than 500 grams). Accordingly,

we conclude the district court’s determination of Lurry’s base

offense level was not erroneous. 

Turning to Lurry’s argument under USSG § 3B1.2, a

defendant has the burden of showing by a preponderance of the

evidence that he had a mitigating role in the offense. United

States v. Akinkoye, 185 F.3d 192, 202 (4th Cir. 1999). A defendant

may receive a four-level reduction for being a minimal participant

if he is “plainly among the least culpable of those involved in the

conduct of a group.” USSG § 3B1.2, comment. (n.4). This level of

culpability is shown by “the defendant’s lack of knowledge or

understanding of the scope and structure of the enterprise and of

the activities of others. . . .” Id. A two-level reduction may be

made when a defendant is a minor participant; that is, one “who is

less culpable than most other participants, but whose role could

not be described as minimal.” USSG § 3B1.2, comment. (n.5). In

deciding whether the defendant played a minor or minimal role, the

“critical inquiry is not just whether the defendant has done fewer
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‘bad acts’ than his co-defendants, but whether the defendant’s

conduct is material or essential to committing the offense.”

United States v. Pratt, 239 F.3d 640, 646 (4th Cir. 2001) (internal

quotations and citations omitted). Role adjustments are determined

on the basis of the defendant’s relevant conduct. United States v.

Fells, 920 F.2d 1179, 1183-84 (4th Cir. 1990). The district

court’s determination concerning the defendant’s role in the

offense is a factual issue reviewed for clear error. United

States v. Love, 134 F.3d 595, 606 (4th Cir. 1998).

Lurry incorrectly claims the district court failed to

provide a basis for its denial under § 3B1.2. At the end of the

sentencing hearing’s first day, the court overruled Lurry’s

objection concerning the PSR’s alleged failure to recommend a

reduction on this basis. The court found Lurry presented no

credible evidence he was less responsible than the other members of

the crack distribution conspiracy. Clearly, the district court

found Lurry failed to carry his burden by a preponderance of the

evidence. See Akinkoye, 185 F.3d at 202.

Lurry also contends the district court erred when it

disregarded testimony from several witnesses that he was a minor

player in the drug conspiracy and instead credited Byrd’s testimony

that Lurry was an equal member. Lurry claims Byrd, who received

the longest sentence of all of the conspirators, had the most to
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gain by assisting the Government. Thus, Lurry attacks the district

court’s credibility determination. 

Credibility determinations are within the province of the

sentencing court and will not be overturned unless clearly

erroneous. See United States v. Fisher, 58 F.3d 96, 100 (4th Cir.

1995); United States v. Choate, 12 F.3d 1318, 1321 (4th Cir. 1993)

(“Unless we can discern some greater unfairness, we will not

confine the sentencing court’s discretion to the evidence the

adversaries wish it to consider.”). The district court found

Byrd’s testimony credible because he did not plainly contradict

earlier statements to the authorities, unlike the witnesses Lurry

urges this court to credit on appeal. This credibility

determination was not clearly erroneous, and we will not overturn

it. Furthermore, after reviewing the sentencing transcript, we

conclude the district court’s denial of a reduction under USSG

§ 3B1.2 was not erroneous.

The district court imposed a sentence below the statutory

maximum, see 21 U.S.C. § 841(b)(1)(C) (2000), and within the

properly calculated sentencing guidelines range; thus, the sentence

is presumptively reasonable. See Green, 436 F.3d at 457.

Accordingly, we affirm Lurry’s sentence. We dispense with oral

argument because the facts and legal contentions are adequately
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presented in the materials before the court and argument would not

aid the decisional process.

AFFIRMED