                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-20-2006

USA v. Mercer
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4767




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"USA v. Mercer" (2006). 2006 Decisions. Paper 430.
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                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                 __________

                                     NO. 05-4767
                                     __________

                          UNITED STATES OF AMERICA

                                          v.

                                 AKIBA A. MERCER
                                      a/k/a Michael A. Ward
                                      a/k/a Andre Wilburn
                                      a/k/a Michael Ward
                                      a/k/a Akiba Abdul Mercer
                                      a/k/a Michael Anthony Ward

                                 Akiba A. Mercer,
                                               Appellant
                                    __________

                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                                 (D.C. No. 04-cr-00135)
                    District Judge: Honorable James F. McClure, Jr.
                                      __________

                      Submitted under Third Circuit LAR 34.1(a)
                                 September 12, 2006

            BEFORE: FUENTES, FISHER, AND BRIGHT*, Circuit Judges

                              (Filed: September 20, 2006)
                                      __________

                                      OPINION


*
Honorable Myron H. Bright, United States Circuit Judge for the Eighth Circuit Court of
Appeals, sitting by designation.
                                         __________

BRIGHT, Circuit Judge.

       Akiba A. Mercer, who was convicted by a jury for (1) conspiracy to distribute and

possess with intent to distribute controlled substances and (2) distribution and possession

with intent to distribute cocaine, appeals only his sentence of fifty-two months'

imprisonment. Mercer argues that the district court improperly enhanced his sentence

based on drug quantity and his aggravated role in the offense. For the reasons set forth

herein, we will affirm the district court's sentence.

       Mercer first argues that the district court should have submitted the question of his

role in the offense to a jury before enhancing his sentence. See U.S.S.G., § 3B1.1.

Although the Supreme Court, in United States v. Booker, held that the Sixth Amendment

requires the defendant to admit or a jury to find beyond a reasonable doubt the facts

necessary to support a sentence exceeding the statutory maximum, the Court did not

remove the trial court's ability to make factual determinations relevant to sentencing. 543

U.S. 220, 244-45 (2005). The Supreme Court remedied the Sixth Amendment concerns

attendant to the Guidelines when it made the Guidelines advisory. See id. at 245. Thus,

we have held after Booker that a judge may determine sentencing facts supported by a

preponderance of the evidence so long as those facts are applied to an advisory, rather

than mandatory, sentencing scheme. See United States v. Miller, 417 F.3d 358, 362-63

(3d Cir. 2005). At Mercer's sentencing hearing, the district court specifically recognized

that the Guidelines are advisory and properly determined facts concerning Mercer's role

                                               2
in the offense.

       Mercer also argues that the evidence in his case does not support the trial court's

determination of drug quantity. We review the district court's findings of fact for clear

error. See United States v. McKoy, 452 F.3d 234 (3d Cir. 2006).

       The district court, relying on trial testimony and sample testing, found Mercer

responsible for 63.9 grams of cocaine found in his apartment or distributed to others and

an additional 111.3 grams of cocaine reflected in "owe sheets." Notably, to avoid

possible double counting, the judge did not consider empty knotted bags found in

Mercer's trash can. With respect to marijuana, the district court evaluated the trial

testimony of four witnesses to determine the quantity of marijuana.

       We have previously held that sample testing and testimony may be sufficient

evidence to determine drug quantity. See United States v. Dent, 149 F.3d 180, 187-88,

190-91 (3d Cir. 1998). In this case, there was ample evidence for the district court to

determine drug quantity, and the court did not clearly err in sentencing Mercer based on

more than twenty but less than forty kilograms of marijuana equivalency.

       Accordingly, we will affirm the sentence of the district court.

                                        __________




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