United States v. Evans ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4592
DARRELL KEITH EVANS,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Rock Hill.
Matthew J. Perry, Jr., Senior District Judge.
(CR-95-837)
Submitted: December 19, 1996
Decided: January 6, 1997
Before ERVIN and MOTZ, Circuit Judges, and BUTZNER,
Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Michael L. Brown, Jr., Rock Hill, South Carolina, for Appellant.
J. Rene Josey, United States Attorney, Marshall Prince, Assistant
United States Attorney, Columbia, South Carolina, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Darrell Keith Evans pled guilty to conspiracy to commit armed
robbery, 18 U.S.C.A. § 1951(a) (West Supp. 1996), and possession of
a firearm by a convicted felon, 18 U.S.C.A. § 922(g)(1) (West Supp.
1996). He appeals his 60-month sentence, contending that the district
court clearly erred in finding that he did not have a minor role in the
conspiracy and in considering hearsay testimony by the case agent.
We affirm.
Under USSG § 3B1.2(b),* a defendant's offense level may be
decreased by two levels if the sentencing court finds that he is less
culpable than most other participants in the offense. Evans admitted
participating in three robberies; the level of his involvement varied
with each one. On December 13, 1994, Evans permitted his car to be
used in the robbery of a convenience store in return for $200 although
he was aware that his co-defendants intended to commit a robbery.
The store clerk was shot and killed. On December 22, 1994, Evans
drove three co-defendants to and from another convenience store
which was robbed with his .45 revolver. He received $600 for his
assistance. On December 29, 1994, Evans helped plan the last robbery
and drove his co-defendants past the chosen convenience store while
they cased it. His revolver was also used in this robbery.
On these facts, we have no difficulty in finding that Evans failed
to show that he was a minor participant. See United States v. Terry,
86 F.3d 353, 358 (4th Cir. 1996) (defendant who drove confederates
to and from crime scene knowing of their plans not a minor partici-
pant). The district court properly refused the mitigating adjustment.
Moreover, the court did not err in considering the testimony of the
case agent about his interview with Evans in which Evans admitted
knowing, on December 13, that his car would be used to commit a
robbery. United States v. Falesbork, 5 F.3d 715, 722 (4th Cir. 1993)
(sentencing court may consider hearsay which defendant has opportu-
nity to explain or rebut).
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*United States Sentencing Commission, Guidelines Manual (Nov.
1995).
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The sentence is therefore affirmed. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.
AFFIRMED
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