                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-5034


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

TENNYSON HARRIS, a/k/a Teddy, a/k/a Mark T,

                  Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt.     Peter J. Messitte, Senior District
Judge. (8:00-cr-00253-PJM-3)


Submitted:    December 30, 2009             Decided:   January 25, 2010


Before KING, GREGORY, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Sicilia Chinn Englert, LAWLOR & ENGLERT, LLC, Greenbelt,
Maryland, for Appellant.      Rod J. Rosenstein, United States
Attorney, Steven M. Dunne, Assistant United States Attorney,
Greenbelt, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

                 Tennyson Harris appeals the sentence imposed by the

district         court    on    remand      from           this   court        for       resentencing

pursuant to United States v. Booker, 543 U.S. 220 (2005).                                               A

jury convicted Harris of conspiracy to distribute and possess

with intent to distribute 1000 kilograms or more of marijuana,

in violation of 21 U.S.C. § 846 (2006).                              In this appeal, Harris

argues that the district court erred in determining that he was

responsible for over 3000 kilograms of marijuana, which resulted

in     a    base    offense       level       of       thirty-four            pursuant         to    U.S.

Sentencing         Guidelines       Manual         (“USSG”)         §    2D1.1(c)(3)            (2001).

Specifically, he asserts that the court’s method of averaging

the    number      of    drug     hauling     trips          performed         by    various        truck

drivers and multiplying that figure by an assumed quantity of

marijuana hauled on each trip was not supported by the record.

                 This court reviews the district court’s calculation of

the quantity of drugs attributable to a defendant for sentencing

purposes for clear error.                   United States v. Randall, 171 F.3d

195, 210 (4th Cir. 1999).                   Clear error occurs when the court,

upon       reviewing      the     record      as       a    whole,       is    “‘left         with    the

definite         and     firm      conviction              that     a     mistake             has    been

committed.’”             Easley    v.   Cromartie,            532       U.S.    234,      242       (2001)

(quoting United States v. United States Gypsum Co., 333 U.S.

364,       395   (1948)).         “If   the    defendant            objects         to    a    quantity

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recommended in a presentence report, the district court must

make an independent resolution of the factual issues raised by

the objection.”        United States v. Williams, 152 F.3d 294, 300-01

(4th Cir. 1998).           The Government must establish the quantity of

drugs   attributable        to    a    defendant        by    a       preponderance           of    the

evidence and may do so through the introduction of relevant and

reliable evidence.           United States v. Jones, 31 F.3d 1304, 1316

(4th Cir. 1994).

              “Where there is no drug seizure or the amount seized

does    not   reflect      the    scale     of    the    offense,            the      court    shall

approximate the quantity of the controlled substance.”                                             USSG

§ 2D1.1, comment. (n.12).               “The district court is afforded broad

discretion      as    to   what       information        to       credit         in    making       its

calculations.”         United States v. Cook, 76 F.3d 596, 604 (4th

Cir.    1996)      (internal      quotation       marks       omitted).                “Direct      or

hearsay       testimony      of       lay   witnesses             .     .    .        can   provide

sufficiently reliable evidence of quantity.                                 Where witnesses’

estimates of drug amounts are uncertain, however, a district

court is well advised to sentence at the low end of the range to

which the witness testified.”                    United States v. Sampson, 140

F.3d 585, 592 (4th Cir. 1998) (internal citations omitted).

              In     arguing      that      the     district                court       erred       in

determining drug quantity, Harris relies principally on United

States v. Sepulveda, 15 F.3d 1161, 1198 (1st Cir. 1993), in

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which     the    district       court       relied     on     trial        testimony         that

addressed       drug    quantities      in    a    general     manner.            The        First

Circuit vacated the sentence, holding that “where uncertainty

reigns”    about       the   amount    of    drugs     involved       in    a    conspiracy,

courts should “err on the side of caution.”                           Id.        This court,

however,     has       rejected      the     holding     in     Sepulveda          in        clear

language: “we hold that a district court need not ‘err,’ on the

side of caution or otherwise; it must only determine that it was

more likely than not that the defendant was responsible for at

least the drug quantity attributed to him.”                           United States v.

Kiulin, 360 F.3d 456, 461 (4th Cir. 2004).                        Our review of the

record convinces us that the district court’s methodology was

proper     and    the    drug     quantity        attributed     to        Harris       by    the

district court was supported by the evidence.

             Accordingly, we affirm Harris’s sentence.                           We dispense

with oral argument because the facts and legal conclusions are

adequately       presented      in    the    materials        before       the    court       and

argument would not aid the decisional process.

                                                                                    AFFIRMED




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