                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 02-4511



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


JONATHAN JIMENEZ,

                                             Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg. Samuel G. Wilson, District
Judge. (CR-01-58)


Submitted:   May 31, 2005                    Decided:   July 28, 2005


Before KING, GREGORY, and SHEDD, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.


Russell N. Allen, Richmond, Virginia; B. Alan Seidler, LAW OFFICE
OF B. ALAN SEIDLER, New York, New York, for Appellant. John L.
Brownlee, United States Attorney, Ray B. Fitzgerald, Jr., Assistant
United States Attorney, Charlottesville, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

              Jonathan Jimenez was convicted by a jury of conspiracy to

distribute more than fifty grams of crack cocaine, in violation of

21   U.S.C.    §    846    (2000),   and   sentenced   to   life    imprisonment.

Jimenez appeals, claiming that his rights under the Speedy Trial

Act were violated, the evidence was insufficient to support his

conviction, and that the district court erred at sentencing in

determining        the    amount   of   drugs   attributable   to    him   and   in

increasing his offense level for his role in offense. Jimenez also

contends that his sentence must be vacated under United States v.

Booker, 125 S. Ct. 738 (2005), because the district court, treating

the United States Sentencing Guidelines as mandatory, impermissibly

applied certain offense-level enhancements based on judge-found

facts.   Because we conclude that re-sentencing is warranted under

Booker, we need not address Jimenez’s challenges to the district

court’s application of the Guidelines provisions. United States v.

Hughes, 401 F.3d 540, 556 n.15 (4th Cir. 2005).                For the reasons

that follow, we affirm Jimenez’s conviction, vacate his sentence,

and remand for resentencing.

              Jimenez first argues that his rights under the Speedy

Trial Act (STA), 18 U.S.C. § 3161 (2000), were violated because his

trial failed to commence within seventy days of his first court

appearance.        The time that Jimenez’s co-defendant’s motions for

continuance were pending is excluded from the STA computation for


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all defendants in the same action. 18 U.S.C. 3161(h)(1)(F); United

States v. Jarrell, 147 F.3d 315, 316 (4th Cir. 1998).                In addition,

the list of periods of delay that are excluded for purposes of

speedy trial calculations includes “[a]ny period of delay resulting

from a continuance granted by any judge on his own motion or at the

request   of    the   defendant   .     .    .   if   the   judge   granted   such

continuance on the basis of his findings that the ends of justice

served by taking such action outweigh the best interest of the

public and the defendant in a speedy trial.”                   § 3161(h)(8)(A).

Here, in both orders granting the motions for continuance, the

district court specifically found that “the ends of justice served

by the granting of a continuance outweigh the best interest of the

public and the defendants in a speedy trial.”                Therefore, we find

that Jimenez’s rights under the Speedy Trial Act were not violated.

           Next, Jimenez asserts that the evidence presented at

trial was insufficient to support his conviction.                   The evidence,

viewed in the light most favorable to the government, see United

States v. Burgos, 94 F.3d 849, 854 (4th Cir. 1996) (en banc),

established the following.        In the Spring of 1999, the RUSH Drug

Task   Force,   comprised   of    the       Harrisonburg    Police    Department,

Rockingham County Sheriff’s Department, the Virginia State Police,

and the United States Drug Enforcement Agency, uncovered a large

cocaine trafficking conspiracy operating in Harrisonburg, Virginia.

Jimenez was one of the leaders of a group of crack distributors in


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and around Harrisonburg, Virginia, who called themselves “the

boys.”   Sergeant Shane Brown of the Harrisonburg Police Department

testified that, as part of an investigation into organized drug

trafficking    in   Harrisonburg,    he     supervised    three    controlled

purchases of crack cocaine from Jimenez in 2000 and 2001.                 Pedro

Guerrero   testified   that   he   served    as   a   “runner”    for   Jimenez

beginning in 2000.     According to Guerrero, Jimenez traveled to New

York “every two weeks” to purchase powder cocaine which he would

“cook” into crack upon his return to Harrisonburg.                      Guerrero

accompanied Jimenez to New York “at least twice”.

           Robinson de la Cruz testified that he sold crack for

Jimenez and accompanied Jimenez to New York to purchase cocaine “a

few times.”    De la Cruz stated that Jimenez would purchase “maybe

an ounce at most” on his trips to New York.           De la Cruz stated that

Izelle Frye (“Zeek”) worked for Jimenez, selling crack out of an

Economy Inn.   Mike Eshbaugh testified that he purchased crack from

Jimenez “500, 1,000” times and that Jimenez was part of a group of

individuals—including several named co-conspirators—from whom he

routinely purchased crack cocaine.

           We find that this evidence sufficiently established each

of the elements necessary to support Jimenez’s conviction for

conspiring to distribute crack cocaine.           Glasser v. United States,

315 U.S. 60, 80 (1942); Burgos, 94 F.3d at 857.             As to Jimenez’s

argument challenging the credibility of the Government’s witnesses,


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it is well established that the question of witness credibility is

within the sole province of the jury and not susceptible to review.

United States v. Saunders, 886 F.2d 56, 60 (4th Cir. 1989).

Moreover,   the    potential    biases     of    each    of    the   Government’s

witnesses were fully explored during direct and cross examination.

            Finally, Jimenez challenges his sentence under Booker.

At sentencing, the district court attributed 12 kilograms of crack

cocaine to Jimenez, resulting in a base offense level of 38.                    The

court also gave Jimenez a four-level enhancement for his role in

the   offense,    pursuant     to   U.S.   Sentencing         Guidelines   Manual

§ 3B1.1(a).      Based on a total offense level of 461 and a criminal

history category of I, the resulting guideline range was life

imprisonment, which the court imposed.                  In contrast, the base

offense level for the amount of crack charged in the indictment

(fifty grams) would have been 32; without applying any other

enhancements, Jimenez’s guideline range would have been 97-121

months imprisonment.

            Although     Jimenez    did    not   raise     a    Sixth   Amendment

challenge at sentencing, this court has held that a mandatory

enhancement      based   on    judicial      factfinding       supported   by    a

preponderance of the evidence constitutes plain error warranting


      1
      The district court also applied a two-level enhancement under
USSG § 2D1.1(b)(1) based on its finding that Jimenez traded crack
for a handgun on three occasions and also a two-level enhancement
for obstruction of justice under USSG § 3C1.1. Jimenez does not
challenge these enhancements.

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correction.          United States v. Hughes, 401 F.3d at 547-48 (citing

United States v. Olano, 507 U.S. 725, 731-32 (1993)).

                  In light of Booker and Hughes, we find that the district

court plainly erred in sentencing Jimenez.2                  Therefore, we vacate

his sentence and remand for proceedings consistent with Hughes. In

light of this disposition, we deny Jimenez’s motion to file a pro

se supplemental brief.            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 IN PART, VACATED         IN PART AND REMANDED




        2
      Just as we noted in Hughes, 401 F.3d at 545 n. 4, “[w]e of
course offer no criticism of the district judge, who followed the
law and procedure in effect at the time" of Jimenez’s sentencing.
See generally Johnson v. United States, 520 U.S. 461, 468 (1997)
(stating that an error is “plain” if “the law at the time of trial
was settled and clearly contrary to the law at the time of
appeal”).

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