United States v. Mark Berger
697 F. App'x 193
| 4th Cir. | 2017Background
- Mark Andrew Berger convicted of conspiracy to possess with intent to distribute ≥5 kg cocaine and ≥280 g cocaine base; sentenced to 270 months' imprisonment.
- Sentencing issue: whether drug quantities distributed by three nephews should be attributed to Berger as relevant conduct under USSG §1B1.3(a)(1).
- Presentence report attributed nephews' distributions to Berger, but the district court relied only on nephew Justin Berger’s distributions for drug-quantity calculation at sentencing.
- Justin testified at trial that over three+ years he frequently converted cocaine into crack at Berger’s residence and that Berger accepted cocaine and cash as compensation; Justin’s testimony was uncontroverted.
- District court found Berger aware of Justin’s activities and that Justin’s conduct was within the scope of the conspiracy; therefore the court held Berger responsible for Justin’s drug quantities.
- Fourth Circuit reviewed for reasonableness and clear error, requiring the government to prove drug quantity by a preponderance; it affirmed the sentence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court erred in attributing nephews' drug quantities to Berger as relevant conduct under the Guidelines | Berger: court improperly held him responsible for nephews' distributions beyond his own conduct | Govt: drug quantity may include jointly undertaken acts that were within scope of agreement and reasonably foreseeable; district court reasonably relied on Justin’s uncontroverted testimony | Affirmed: court properly attributed Justin’s distributions to Berger; no clear error and government proved quantity by a preponderance |
Key Cases Cited
- Gall v. United States, 552 U.S. 38 (sentencing reviewed for reasonableness under abuse-of-discretion standard)
- United States v. Crawford, 734 F.3d 339 (drug-quantity attribution reviewed for clear error)
- United States v. Foster, 824 F.3d 84 (definition of clear error in sentencing context)
- United States v. McGee, 736 F.3d 263 (government must prove drug quantity by a preponderance)
- United States v. Flores-Alvarado, 779 F.3d 250 (relevant conduct in conspiracy includes acts of others that were within scope and reasonably foreseeable)