United States of America v. Toby Lee Love

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4975
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TOBY LEE LOVE,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Jerome B. Friedman, District
Judge. (2:05-cr-00082-JBF)
Submitted: July 18, 2007 Decided: July 31, 2007
Before WILKINSON, MOTZ, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James B. Melton, Chesapeake, Virginia, for Appellant. Chuck
Rosenberg, United States Attorney, Darryl J. Mitchell, Assistant
United States Attorney, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Toby Lee Love was convicted by a jury of one count of
conspiracy to possess with intent to distribute and to distribute
cocaine and marijuana as well as one count of conspiracy to commit
money laundering, in violation of 18 U.S.C. §§ 2; 1956; 1957; 21
U.S.C. §§ 841(a)(1), (b)(1)(A); 846 (2000). Love was sentenced by
the district court to 210 months’ imprisonment. On appeal, Love
contends his sentence is unreasonable as it “was based upon an
irrational determination by the jury.” Finding no error, we
affirm.
Love’s argument on appeal centers on his assertion that
the testimony of the Government’s witnesses was inconsistent as to
drug quantities. He asserts the verdict was inconsistent because
it attributed five kilograms of cocaine to him without attributing
a specific quantity of marijuana. As the testimony regarding the
fifth kilogram of cocaine involved a trip in which one pound of
marijuana was also said to have been transported, Love reasons that
the jury’s failure to find a specific quantity of marijuana
established that the jury did not believe the third trip occurred.
Love therefore concludes that the greatest quantity of cocaine the
jury could have consistently attributed to him was four kilograms.
However, one witness testified that Love transported
approximately five kilograms of cocaine during the course of three
trips. The witness’ testimony established that the witness was the

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leader of the conspiracy and therefore aware of all of the
transactions occurring within the course of the
conspiracy—including Love’s. Thus, there was evidence upon which
the jury could have based its findings. As witness credibility is
solely within the province of the jury, we will not reassess the
credibility of testimony. See United States v. Saunders, 886 F.2d
56, 60 (4th Cir. 1989).
Moreover, even if the verdict was inconsistent, such
inconsistencies “in criminal trials need not be set aside, but may
instead be viewed as a demonstration of the jury’s leniency.”
United States v. Powell, 469 U.S. 57, 61 (1984). Therefore,
because the district court appropriately treated the Guidelines as
advisory, properly calculated and considered the advisory guideline
range, and weighed the relevant 18 U.S.C. § 3553(a) (2000) factors,
we conclude Love’s 210-month sentence, which was below the
statutory maximum and at the bottom of the advisory guideline
range, is reasonable. See United States v. Hughes, 401 F.3d 540,
546-47 (4th Cir. 2005); see also United States v. Green, 436 F.3d
449, 457 (4th Cir.) (stating a sentence imposed within a properly
calculated guideline range is presumptively reasonable), cert.
denied, 126 S. Ct. 2309 (2006).
Accordingly, we affirm the judgment of the district
court. We dispense with oral argument because the facts and legal

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contentions are adequately presented in the materials before the
court and argument would not aid in the decisional process.
AFFIRMED

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