US v. Love

Filing 920070731

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 06-4975

UNITED STATES OF AMERICA, Plaintiff - Appellee, versus TOBY LEE LOVE, Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Jerome B. Friedman, District Judge. (2:05-cr-00082-JBF)

Submitted:

July 18, 2007

Decided:

July 31, 2007

Before WILKINSON, MOTZ, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

James B. Melton, Chesapeake, Virginia, for Appellant. Chuck Rosenberg, United States Attorney, Darryl J. Mitchell, Assistant United States Attorney, Norfolk, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Toby Lee Love was convicted by a jury of one count of conspiracy to possess with intent to distribute and to distribute cocaine and marijuana as well as one count of conspiracy to commit money laundering, in violation of 18 U.S.C. §§ 2; 1956; 1957; 21 U.S.C. §§ 841(a)(1), (b)(1)(A); 846 (2000). Love was sentenced by On appeal, Love

the district court to 210 months' imprisonment.

contends his sentence is unreasonable as it "was based upon an irrational determination by the jury." affirm. Love's argument on appeal centers on his assertion that the testimony of the Government's witnesses was inconsistent as to drug quantities. He asserts the verdict was inconsistent because Finding no error, we

it attributed five kilograms of cocaine to him without attributing a specific quantity of marijuana. As the testimony regarding the

fifth kilogram of cocaine involved a trip in which one pound of marijuana was also said to have been transported, Love reasons that the jury's failure to find a specific quantity of marijuana

established that the jury did not believe the third trip occurred. Love therefore concludes that the greatest quantity of cocaine the jury could have consistently attributed to him was four kilograms. However, one witness testified that Love transported approximately five kilograms of cocaine during the course of three trips. The witness' testimony established that the witness was the

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leader

of

the

conspiracy occurring

and

therefore the

aware

of

all of

of

the the

transactions

within

course

conspiracy--including Love's.

Thus, there was evidence upon which As witness credibility is

the jury could have based its findings.

solely within the province of the jury, we will not reassess the credibility of testimony. 56, 60 (4th Cir. 1989). Moreover, even if the verdict was inconsistent, such inconsistencies "in criminal trials need not be set aside, but may instead be viewed as a demonstration of the jury's leniency." United States v. Powell, 469 U.S. 57, 61 (1984). Therefore, See United States v. Saunders, 886 F.2d

because the district court appropriately treated the Guidelines as advisory, properly calculated and considered the advisory guideline range, and weighed the relevant 18 U.S.C. § 3553(a) (2000) factors, we conclude Love's 210-month sentence, which was below the

statutory maximum and at the bottom of the advisory guideline range, is reasonable. See United States v. Hughes, 401 F.3d 540,

546-47 (4th Cir. 2005); see also United States v. Green, 436 F.3d 449, 457 (4th Cir.) (stating a sentence imposed within a properly calculated guideline range is presumptively reasonable), cert. denied, 126 S. Ct. 2309 (2006). Accordingly, we affirm the judgment of the district court. We dispense with oral argument because the facts and legal

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contentions are adequately presented in the materials before the court and argument would not aid in the decisional process. AFFIRMED

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