United States v. Chambers ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5218
CARL HEADLEY CHAMBERS,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Virginia, at Harrisonburg.
James H. Michael, Jr., Senior District Judge.
(CR-93-29-C-H)
Submitted: December 14, 1995
Decided: January 5, 1996
Before ERVIN, Chief Judge, and WIDENER and WILKINS,
Circuit Judges.
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Affirmed in part and dismissed in part by unpublished per curiam
opinion.
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COUNSEL
Steven M. Askin, Robert C. Stone, Jr., ASKIN & ASSOCIATES,
Martinsburg, West Virginia, for Appellant. Robert P. Crouch, Jr.,
United States Attorney, Donald R. Wolthuis, Assistant United States
Attorney, Eric Chaffin, Third Year Law Student, Roanoke, Virginia,
for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Carl Headley Chambers entered a guilty plea to one count of pos-
sessing or aiding and abetting the possession of crack cocaine with
intent to distribute, 21 U.S.C.A. § 841 (West 1981 & Supp. 1995), 18
U.S.C. § 2 (1988). He appeals his sentence, contending that the dis-
trict court erred in refusing him an adjustment for acceptance of
responsibility, USSG § 3E1.1,* in determining his criminal history
score, USSG § 4B1.1, and in refusing to depart on the ground of his
health and family ties, USSG §§ 5H1.4, p.s., 5H1.6, p.s. We affirm
in part and dismiss in part.
In August 1993, reports received by the regional drug task force
that Chambers was involved in cocaine trafficking in Winchester, Vir-
ginia, prompted a search of his house. The officers found a locked
metal toolbox in a bedroom. Chambers first said he did not have a key
to the toolbox. When he realized that the officers intended to break
into the toolbox, Chambers said he had the key in his van. The offi-
cers permitted Chambers to look for the key in the van, but he did not
find it. At this point, Chambers grabbed the box and ran from the
house. He was captured quickly and the box was forced open. Inside
were 59.02 grams of crack, $3800 in cash, Chambers' passport, gold
jewelry, and other items. The key to the toolbox was found eventually
in the bushes outside Chambers' house where one of the back-up offi-
cers saw him throw something during the search.
After his arrest, Chambers stated that the crack had been left with
him by a Jamaican male for whom he occasionally held crack for
periods of time, but about whom he knew nothing. He acknowledged
that he was sometimes paid $100 for holding crack. Chambers ini-
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*United States Sentencing Commission, Guidelines Manual (Nov.
1994).
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tially sought to suppress the evidence recovered during the search.
However, on the morning scheduled for the suppression hearing and
trial, Chambers entered a guilty plea. He continued to maintain that
he did not know the identity of the owner of the crack and that he was
not involved in selling crack.
At the sentencing hearing, Chambers argued for an acceptance of
responsibility reduction based on his admission of his criminal con-
duct and his guilty plea. He also alleged that the search of his house
was improper and that the evidence seized during the search should
not be considered in sentencing him. Finally, he argued that the use
of financial records provided by his wife violated the marital privi-
lege. The district court found that a reduction for acceptance of
responsibility was not appropriate because, even assuming the truth
of Chambers' story, he had refused to identify the owner of the crack.
A related factor was Chambers' failure to account for expenditures of
$33,000 during 1993, a year when his reported earnings were about
$8200.
We find that the district court's determination was not clearly erro-
neous. A defendant need only admit the conduct comprising the count
of conviction but may not falsely deny relevant conduct. USSG
§ 3E1.1, comment. (n.1(a)). The court did not credit Chambers' asser-
tion that he did not know the identity of the person for whom he regu-
larly held crack. Further, the district court was entitled to consider all
reliable information available without regard to its admissibility at
trial. See United States v. Lee, 540 F.2d 1205, 1210-11 (4th Cir.) (ille-
gally seized but reliable information), cert. denied, 429 U.S. 894(1976); United States v. Burton, 631 F.2d 280, 282 (4th Cir. 1980)
(marital privilege no bar to consideration of financial records).
Chambers was properly awarded one criminal history point for his
1985 fine for driving under the influence; he had waived counsel. See
Nichols v. United States, ___ U.S. #6D6D 6D#, 62 U.S.L.W. 4421 (U.S. June
6, 1994) (No. 92-8556); United States v. Falesbork, 5 F.3d 715, 718-
19 (4th Cir. 1993). The district court's decision not to depart under
USSG § 4A1.3 is not reviewable. United States v. Bayerle, 898 F.2d
28, 31 (4th Cir.), cert. denied, 498 U.S. 819 (1990). Similarly, the
court's refusal to depart because of Chambers' health problems, fam-
ily ties, or the likelihood of his deportation is not reviewable. Id.3
We therefore affirm the sentence imposed by the district court. We
dismiss the appeal to the extent Chambers seeks review of the district
court's refusal to depart. 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, DISMISSED IN PART
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