UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 05-4709

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

WALLACE LEE JOHNSON,

Defendant - Appellant.

Appeal from the United States District Court for the Northern

District of West Virginia, at Martinsburg. W. Craig Broadwater,

District Judge. (CR-04-8)

Submitted: June 7, 2006 Decided: September 11, 2006

Before NIEMEYER and KING, Circuit Judges, and HAMILTON, Senior

Circuit Judge.

Affirmed in part and remanded for resentencing by unpublished per

curiam opinion.

Paul G. Taylor, Martinsburg, West Virginia, for Appellant. Thomas

E. Johnston, United States Attorney, Thomas O. Mucklow, Assistant

United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,

Martinsburg, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

Wallace Lee Johnson pleaded guilty without a plea agreement to

three counts of distributing and possessing with the intent to

distribute at least 7.09 grams of cocaine base. Based on the

amount of cocaine base alleged in the indictment, Johnson faced a

maximum of 20 years’ imprisonment. See 21 U.S.C. § 841(b)(1)(C).

Following several hearings, the district court found that

Johnson’s relevant conduct for sentencing purposes included more

than 35 but less than 50 grams of cocaine base, which translated

into a base offense level of 30. The court granted Johnson a twopoint reduction for acceptance of responsibility. With a criminal

history Category V, the Sentencing Guidelines provided Johnson with

a range of 130-162 months’ imprisonment. The court found that a

sentence within that range would serve the purposes of sentencing

stated in 18 U.S.C. § 3553 and accordingly sentenced Johnson to 149

months’ imprisonment on each count, to run concurrently. 

Johnson claims on appeal (1) that the district court clearly

erred in determining the drug quantity used to calculate his

Sentencing Guidelines range, because the testimony that the

district court relied on was not credible; (2) that because the

district court found relevant conduct to involve a drug quantity

beyond the 7.09 grams charged in the indictment, the relevant

conduct should have been found beyond a reasonable doubt, not by a

preponderance of the evidence; and (3) that having earlier found
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Johnson’s criminal history category to be a Category IV, the court

erred in applying a Category V. We address each claim in order.

We review a district court’s factual findings about relevant

conduct for clear error. United States v. Ebersole, 411 F.3d 517,

536 (4th Cir. 2005); United States v. Hughes, 396 F.3d 374, 382

(4th Cir. 2005). And findings based on the credibility of

witnesses are particularly entitled to great deference. United

States v. Hassanzadeh, 271 F.3d 574, 580 (4th Cir. 2001). Here,

the district court found drug quantity based on the testimony of

several witnesses. The court was well aware that credibility

issues existed with respect to some of the witnesses and took that

into account in calculating the drug quantity even though it also

heard testimony from law enforcement officers. Because of these

credibility problems, the court approached its factfinding

cautiously, rejecting the government’s claim that the relevant

conduct included between 1.3 and 8.7 kilograms. Based on our

review of the record, Johnson has not demonstrated that the

district court’s factual findings in these circumstances were

clearly erroneous.

Johnson also contends that the district court’s factual

findings should have been made on the beyond-a-reasonable-doubt

standard, not a preponderance standard, but he simply

misunderstands the post-Booker sentencing procedure. The district

court did not err in determining the relevant conduct by a
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preponderance of the evidence, and properly followed the sentencing

procedure described in United States v. Hughes, 401 F.3d 540 (4th

Cir. 2005), and later in United States v. Green, 436 F.3d 449 (4th

Cir. 2006).

Finally, Johnson claims that the district court erred in

applying a criminal history Category V, noting that the court had

found him to have a criminal history Category IV during an earlier

sentencing hearing. At its first sentencing hearing, which took

place on May 19, 2005, the district court noted correctly that

Johnson’s criminal history category was IV, not the Category V

stated in the presentence report, because two points proposed in

the presentence report for commission of the instant offense when

Johnson was on probation for an October 2001 offense was an error.

The instant offense was committed in July 2001 before Johnson was

placed on probation for the October 2001 offense. Therefore, with

the reduction of two points, Johnson’s criminal history category

was properly Category IV, not Category V.

Yet when the court later, after several further sentencing

hearings, completed its sentencing of Johnson, it applied Category

V, not Category IV, without explanation. Because the record does

not support a criminal history Category V, we vacate the sentence

and remand for resentencing.

AFFIRMED IN PART AND REMANDED

 FOR RESENTENCING