UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 06-4875

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

DONALD YOUNG,

Defendant - Appellant.

Appeal from the United States District Court for the Western

District of Virginia, at Abingdon. James P. Jones, Chief District

Judge. (1:04-cr-00032-jpj)

Submitted: May 2, 2007 Decided: May 30, 2007

Before NIEMEYER, GREGORY, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Kent Wicker, REED WICKER PLLC, Louisville, KY, John P. Fishwick,

Jr., LICHTENSTEIN, FISHWICK & JOHNSON, PLC, Roanoke, Virginia, for

Appellant. Dennis H. Lee, Special Assistant United States

Attorney, Abingdon, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Donald Ray Young (Young) and his wife, Teresa Young, were

originally charged in a six count indictment with various drug and

weapons charges. On June 9, 2004, Young entered into a written

plea agreement with the Government. Young agreed to plead guilty

to Count One, conspiracy to distribute oxycodone in violation of 21

U.S.C. § 841 (1999), and Count Four, using and carrying a firearm

during and in relation to or possessing in furtherance of a drug

trafficking crime in violation of 18 U.S.C.A. § 924(c) (West 2000

& Supp. 2006). Young also agreed to forfeit the property that

provided the basis for Count Six. 

On June 18, 2004, during their joint plea colloquy, Young

and his wife both made statements that the drug sales did not begin

in 2000 as alleged, but later, possibly in 2002 or 2003. The

Youngs appeared for sentencing on August 24, 2004. Pursuant to

Mrs. Young’s plea agreement, the district court sentenced her to

one day in jail on Count Two, possession with intent to distribute

oxycodone, and to sixty months on Count Three, possession of a

firearm in furtherance of a drug trafficking crime. Her agreement

stipulated that the applicable drug weight for sentencing purposes

in her case would not be the total amount sold from 2000-2004, but

the amount she sold to a confidential informant, approximately 2.97

grams. 
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During Young’s sentencing, the court heard evidence that

the probation officer calculated drug weight based on Mrs. Young’s

initial statements to law enforcement officers about drug amounts

sold from 2000-2004. ATF Agent Aaron Yoh also testified that law

enforcement was aware of Young’s drug activities as early as 2001.

Yoh also testified that at a proffer session Young identified a

Larry Smith as one of his suppliers of Oxycontin. Young then

elected to testify in support of his objection that he did not

start selling drugs until 2003. In his testimony, Young denied

ever purchasing drugs from Larry Smith. However, on crossexamination, Young admitted that at the proffer session he may have

admitted to selling drugs in 2002 and that he may have threatened

his wife’s life. 

After Young testified, he insisted his wife be called as

a witness. In her testimony, Mrs. Young repudiated her statement

from the plea hearing that Young did not sell drugs in 2000 and

2001. Mrs. Young also testified that Larry Smith was a source for

her husband’s drugs, that her husband began selling in 2000, that

she was afraid of her husband because he had put a gun to her head

on a prior occasion for dipping into his drugs and money, and that

a Smith and Wesson nine millimeter never left his side. Mrs. Young

also testified that she started selling drugs in 2002 when Young

gave her an ultimatum to either help in the sales or leave the

home. Mrs. Young also testified that her initial statement to law
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enforcement was her best estimate of drugs sold from 2000-2004.

Finally, Mrs. Young testified that her husband asked her to lie at

his sentencing by testifying that he did not start selling drugs

until 2003. 

The district court accepted the presentence report and

sentenced Young to sixty months on Count One and sixty months on

Count Four. Young did not appeal; however, he did collaterally

attack his plea and sentence in a 28 U.S.C. § 2255 (2000) motion.

The district court ruled in favor of Young on his claim that his

counsel failed to honor his request to file a notice of appeal, but

denied the motion on all other points based on Young’s waiver of

collateral attack rights. To reinstate Young’s appeal rights, the

district court resentenced Young on August 17, 2006. Young timely

appealed, alleging four separate errors. 

Young first argues that the district court imposed its

sentence based on an unreliable estimate of the amount of drugs

sold. This court reviews findings of fact related to a district

court’s application of the sentencing guidelines for clear error.

United States v. Green, 436 F.3d 449, 456 (4th Cir.), cert. denied,

126 S. Ct. 2309 (2006). Here, the district court’s determination

of drug weight was not clearly erroneous. Mrs. Young’s testimony

provided ample credible evidence that Young began selling drugs in

2000 and not 2004 as he claimed. 
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Young next argues that 18 U.S.C. § 3553(a)(6) (2000)

required the district court to vary from the guidelines and impose

the same sentence on the possession count as his co-defendant wife

received. Young further argues that the only reason his wife

received a lesser sentence was due to the Government’s stipulation

as to drug weight in her case and this stipulation was improper in

light of United States v. Booker, 543 U.S. 220 (2005). 

The differences in sentences between Young and his wife

were fully supported by the fact that Young became involved in

narcotics dealing first, Mrs. Young only became involved several

years later, Young brought drugs to his wife from other states for

sale, and while Mrs. Young testified truthfully at sentencing,

Donald Young testified inconsistently with prior statements to law

enforcement. Moreover, the district court was fully aware of the

facts in both Mr. and Mrs. Young’s cases, and it was not required

to base Young’s sentence on the Government’s stipulation as to drug

weight attributable to Mrs. Young. The district court, therefore,

did not err in sentencing Mr. and Mrs. Young to different

sentences. 

Young next claims that his sentence was unreasonable.

Young raises two separate grounds for this argument. First, Young

argues that the Government should be bound by its stipulation in

his wife’s case as to the amount of drugs involved. However, this

court has already determined that non-mutual collateral estoppel
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does not apply in sentencing proceedings. Therefore, his first

argument is without merit. United States v. Pierce, 400 F.3d 176,

182 (4th Cir. 2005). Young’s second argument is that he should

have been sentenced to one day on the drug count because the five

year sentence he received on the firearms count was “onerous” given

the facts of his case. However, the district court heard evidence

that Young never let a 9 millimeter Smith and Wesson out of his

sight, and Young threatened his wife with a 9 millimeter handgun

for dipping into his drugs and cash. Therefore, Young has not

shown his sentence was unreasonable. 

Finally, Young attempts to raise a claim originally

raised in his § 2255 motion and dismissed by the district court.

Young failed to appeal the district court’s ruling on his § 2255

motion, and he cannot now properly raise in his direct appeal a

claim from his § 2255 motion that was dismissed by the district

court. See In re Williams, 444 F.3d 233, 236 (4th Cir. 2006).

For the foregoing reasons, we affirm the district court’s

judgment. 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