United States v. Carter ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4239
DEBORAH L. CARTER,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4240
REGINALD CARTER,
Defendant-Appellant.
Appeals from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(CR-95-197)
Submitted: September 30, 1997
Decided: October 21, 1997
Before WIDENER, MURNAGHAN, and MICHAEL,
Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Joseph J. McCarthy, DELANEY, MCCARTHY, COLTON &
BOTZIN, P.C., Alexandria, Virginia; Paul P. Vangellow, Falls
Church, Virginia, for Appellants. Helen F. Fahey, United States
Attorney, Mythili Tharmaratnam, Special Assistant United States
Attorney, Alexandria, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Deborah and Reginald Carter appeal from their sentences imposed
for distribution and aiding and abetting in the distribution of crack
cocaine following this court's vacatur of their prior sentences. Debo-
rah Carter claims that she is entitled to a departure from the range
established in the Sentencing Guidelines under a theory of sentencing
entrapment or manipulation. She also argues that she is entitled to a
three-point reduction for acceptance of responsibility. Reginald Carter
claims that he is entitled to a departure below the statutory mandatory
minimum under U.S. Sentencing Guidelines Manual § 5C1.2 (1995),
and that the district court erred in sentencing him as an aider and abet-
ter in the distribution of over fifty grams of crack cocaine. We affirm.
Addressing Deborah Carter's first contention, this court specifi-
cally stated in its prior opinion that under the circumstances of this
case, a departure from the guideline range for an alleged violation of
due process was beyond the authority of the district court. We there-
fore find that Deborah Carter's claim regarding sentencing manipula-
tion is barred by the law of the case. As to her claim of sentencing
entrapment, a review of the resentencing transcript reveals that her
attorney moved for a reduction on the ground of a due process viola-
tion only. We thus find that only the ground of sentencing manipula-
2
tion was preserved for appeal. Any claim of sentencing entrapment,
a theory not involving due process concerns, was thus waived, and we
find no plain error. We therefore affirm the district court's decision
to sentence within the guideline range.
Turning to Deborah Carter's argument that she was entitled to a
three-point reduction for acceptance of responsibility under USSG
§ 3E1.1, we note that Carter failed to raise this claim at her resentenc-
ing hearing. Nonetheless, we find that Deborah Carter's behavior was
not consistent with an acceptance of responsibility and therefore
affirm as to this claim as well.
Dealing next with Reginald Carter's claims, we find no error in the
district court's belief that it lacked the factual authority to depart
under USSG § 5C1.2. In order to receive such a reduction, a defen-
dant must satisfy five prerequisites. Carter concededly meets four of
these requirements. We find, however, that he fails to meet the fifth
--providing all information concerning the offense to the government
prior to or at sentencing. The record on appeal reveals that Reginald
Carter made no offer of cooperation or admission of guilt throughout
trial, his first sentence, and his first appeal. His offer of assistance
came only following one of his resentencing hearings. Further, Carter
still contests his culpability in the offense. We find that Carter's elev-
enth hour offer of assistance is insufficient to warrant a USSG
§ 5C1.2 departure especially given his continued denial of culpability.
Accordingly, we conclude that the district court did not err in its
determination that it lacked the factual authority to depart under
USSG § 5C1.2, and we affirm Carter's sentence in this respect. See
United States v. Withers, 100 F.3d 1142, 1147 (4th Cir. 1996) (stating
that appellant must acknowledge responsibility for actions before
qualifying for safety valve reduction), cert. denied, ___ U.S. ___, 65
U.S.L.W. 3631 (U.S. Mar. 17, 1997) (No. 96-7884).
Finally, Reginald Carter claims that the district court improperly
sentenced him for aiding and abetting in the distribution of over fifty
grams of crack cocaine.* This issue has already been decided by this
_________________________________________________________________
*The district court should correct Reginald Carter's judgment after
resentencing which incorrectly recites that he was convicted of distribut-
ing less than five grams of crack cocaine.
3
panel on Reginald Carter's prior appeal. The prior opinion specifi-
cally found that Carter's conviction was supported by substantial evi-
dence and that he was properly sentenced as a principal under United
States v. Pierson, 53 F.3d 62 (4th Cir. 1995). Accordingly, we find
that this claim is barred by the law of the case doctrine.
In light of the above discussion, we affirm the Carters' sentences.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
4