US v. Joseph Mann

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:11-cr-00341-TSE-1. Copies to all parties and the district court/agency. [999714969].. [15-4148]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4148

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JOSEPH EMMANUEL MANN, a/k/a Musa Kofi, a/k/a Mike Mann,
a/k/a Big Mike, a/k/a Cass Musa, a/k/a Knot Musa, a/k/a
Kofi Musa, a/k/a Gilbert S. Batten, a/k/a Joseph Emmanual
Mann,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.
T. S. Ellis, III, Senior
District Judge. (1:11-cr-00341-TSE-1)

Submitted:

November 30, 2015

Decided:

December 9, 2015

Before KING, DUNCAN, and KEENAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Geremy C. Kamens, Acting Federal Public Defender, Frances H.
Pratt, Kevin R. Brehm, Assistant Federal Public Defenders,
Alexandria, Virginia, for Appellant.
Dana J. Boente, United
States Attorney, Carina A. Cuellar, Christopher Catizone,
Assistant United States Attorneys, Alexandria, Virginia, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Joseph Emmanuel Mann appeals the 108-month sentence imposed
at

his

resentencing

for

conspiracy

to

distribute

oxycodone.

Mann contends that the district court erred in determining the
quantity of drugs attributable to him.

We affirm.

I
At

Mann’s

original

sentencing,

the

district

court

found

that Mann was responsible for an amount of oxycodone with a
marijuana equivalency of at least 3,000 kilograms but less than
10,000 kilograms, resulting in a base offense level of 34.
U.S. Sentencing Guidelines Manual § 2D1.1(c)(3) (2011).

See
Mann

was in criminal history category I, and his Guidelines range was
151-188 months.
months’

imprisonment,

disparity
issues.

The district court imposed a sentence of 108

among

varying

downward

co-conspirators

and

to

because

avoid
of

sentencing

Mann’s

health

On appeal, Mann’s attorney filed a brief pursuant to

Anders v. California, 386 U.S. 738 (1967).

We affirmed.

United

States v. Mann, 494 F. App’x 389 (4th Cir. Oct. 3, 2012) (No.
12-4103).
Mann then filed a 28 U.S.C. § 2255 (2012) motion.
other

issues,

sentencing

for

he

contended

failing

to

that
object

counsel
to

the

was

Among

ineffective

calculation

of

at

drug

quantity on the basis of United States v. Bell, 667 F.3d 431

2

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(4th Cir. 2011).

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The district court granted the motion with

respect to this issue and ordered resentencing.
In its memorandum on resentencing, the government asserted
that the trial testimony of two witnesses, Christopher Martino
and James Post, established that Mann was responsible for 11,266
80-milligram

oxycodone

6,038.576 kilograms.
level

34

offense

under

pills,

a

marijuana

equivalency

of

This amount placed Mann in base offense

the

2011

32

under

level

for

version

of

the

the

2014

Guidelines

version.

§§ 2D1.1(c)(3) (2011), 2D1.1(c)(4) (2014).

and
See

base
USSG

In his memorandum,

Mann claimed he was responsible for 6,946 pills but conceded
that, even using this lower number, the marijuana equivalency
remained

the

same

10,000 kilograms.
offense

level

—

at

least

3,000

kilograms

but

less

than

He agreed with the Government that his base

would

be

34

under

the

2011

version

of

the

Guidelines and 32 under the 2014 version.
At the resentencing hearing, the Government stated that,
although

the

parties

disagreed

about

the

exact

number

of

oxycodone pills Mann had distributed, they agreed that he had
distributed a quantity of oxycodone with a marijuana equivalency
of

at

least

3,000

kilograms

but

less

than

10,000

kilograms.

Mann did not object to this statement, nor did he seek a ruling
on the precise number of pills for which he was responsible.

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The district court determined that Mann was accountable for
oxycodone

with

a

marijuana

equivalency

of

6,038

kilograms,

resulting in base offense level 32 under the 2014 Guidelines.
The court stated that its finding regarding drug quantity was
based on the trial testimony of Martino and Post concerning the
amount

of

oxycodone

Mann

actually

distributed

to

them.

The

court departed below the Guidelines range of 121-151 months and
again sentenced Mann to 108 months in prison.
II
Mann claims that the district court erred in calculating
the

quantity

of

drugs

for

which

he

was

responsible.

Specifically, he contends for the first time on appeal that he
distributed

only

5,293

oxycodone

pills,

for

a

marijuana

equivalency that results in a base offense level of 30 under the
2014

Guidelines.

We

conclude

that,

by

conceding

in

his

resentencing memorandum and at the resentencing hearing that he
was

responsible

for

an

amount

of

oxycodone

with

a

marijuana

equivalency of at least 3,000 kilograms but less than 10,000
kilograms, Mann invited any error and waived his right to raise
this claim on appeal.

See United States v. Hickman, 626 F.3d

756, 772 (4th Cir. 2010); United States v. Herrera, 23 F.3d 74,
75 (4th Cir. 1994).
Even if the issue is not waived, however, we conclude that
the district court did not commit any error, much less plain
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error, in its determination of drug quantity.

First, the court

used the proper methodology sanctioned in Bell to determine drug
quantity.

See Bell, 667 F.3d at 443 (when drug in question was

obtained by conspirator through a prescription, court may base
determination

of

distributed”).

drug

quantity

on

amount

of

drugs

“actually

Second, in concluding that Mann distributed at

least 11,000 oxycodone pills, the court found the testimony of
Martino, who testified that Mann distributed 9,600 pills to him
directly or indirectly, and Post, who testified that he bought
$50,000 worth of oxycodone pills from Mann at $30 per pill, to
be credible.
deference.

We accord this credibility determination great
See United States v. Thompson, 554 F.3d 450, 452

(4th Cir. 2009).
III
We

therefore

affirm.

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

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