United States v. Tate ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4871
JEFFREY TATE,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Malcolm J. Howard, District Judge.
(CR-97-38-H)
Submitted: June 9, 1998
Decided: July 20, 1998
Before WILKINS, NIEMEYER, and WILLIAMS, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Tracy C. Curtner, HAFER, MCNAMARA, CALDWELL, CUTLER
& CURTNER, P.A., Raleigh, North Carolina, for Appellant. Janice
McKenzie Cole, United States Attorney, Anne M. Hayes, Assistant
United States Attorney, Christine Witcover Dean, Assistant United
States Attorney, Raleigh, North Carolina, 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Unpublished opinions are not binding precedent in this circuit.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:
Appellant Jeffrey Tate was convicted pursuant to his guilty plea of
one count of possession with intent to distribute cocaine and crack
cocaine. On appeal he alleges that he was entitled to a three-level
reduction in his base offense level for acceptance of responsibility
pursuant to USSG § 3E1.1;1 that the district court erroneously deter-
mined that he was a supervisor in a criminal activity pursuant to
USSG § 3B1.1(c); that the evidence did not support an enhancement
for possession of a firearm pursuant to USSG § 2D1.1(b)(1); that he
qualified for the "safety valve" provision in USSG §§ 5C1.2 and
2D1.1(b)(6); and that the court should have granted his motion for a
downward departure. Finding no reversible error, we affirm.
In August 1995, law enforcement officers in California arrested
Ronnie Boston on drug conspiracy charges. Boston agreed to cooper-
ate and identified his suppliers and customers, including Tate. Boston
told officials that he had known Tate since they were in junior high
school together and had sold drugs to Tate on several occasions since
1993.2 In June 1996, Boston placed a monitored telephone call to
Tate. Tate stated that he had been trying to reach Boston because he
needed to purchase more drugs, and Boston agreed to supply Tate.
However, due to bureaucratic problems, Boston was not able to call
Tate again until January 1997. In a series of telephone calls, Boston
and Tate negotiated the purchase of three kilograms of crack cocaine.
Officers arrested Tate shortly after he arrived at the transaction site
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1 U.S. Sentencing Guidelines Manual (1995).
2 Boston was able to purchase drugs more cheaply in California and
transported them to North Carolina, where they sold for a much higher
price.
2
and seized the purchase money, an inside-the-pants holster, ammuni-
tion, and a loaded .25 caliber handgun.3
As he did at trial, Tate challenges the district court's sentencing
calculations in a number of ways. First, Tate alleges that the court
erred by not granting his motion for a downward adjustment based on
acceptance of responsibility. Tate cites to his guilty plea and the fact
that he agreed to be debriefed concerning his drug activities in sup-
port of his claim. The burden is on the defendant to show that he is
entitled to the reduction, and the reduction is only appropriate where
the defendant has shown an affirmative acceptance of responsibility
for his behavior. See United States v. Harris , 882 F.2d 902, 906-07
(4th Cir. 1989). In the present case, the Government asserted at sen-
tencing that Tate lied during the debriefing and continuously tried to
minimize his involvement with drugs. Tate responds that the Govern-
ment wanted him to provide information he did not have. We find that
this presents a credibility determination, which the district court
resolved against Tate. Since evidence in the record supports the
court's decision, we find that it was not clearly erroneous. See United
States v. Nale, 101 F.3d 1000, 1005 (4th Cir. 1996) (district court's
factual determination concerning acceptance of responsibility
reviewed for clear error).
Tate also challenges the district court's decision to enhance his
base offense level because he played a supervisory role in the conspir-
acy. We review the district court's factual determination concerning
Tate's role in the offense for clear error and find none. See United
States v. Campbell, 935 F.2d 39, 46 (4th Cir. 1991). The record shows
that Tate had at least two people screening his calls for him.4 Since
the Guidelines only require that a defendant supervise one other indi-
vidual for the enhancement to apply,5 we find that the district court
properly calculated this part of Tate's sentence. Moreover, while Tate
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3 The ammunition and handgun were found under the driver's seat of
the vehicle driven by Tate during an extensive search conducted approxi-
mately one hour after his arrest.
4 While this in itself is not a crime or indicative of criminal activity, the
record suggests that these people knew who Boston was and were aware
of the nature of his relationship with Tate.
5 See USSG § 3B1.1, comment. (n.2).
3
alleges that he was merely an intermediary between Boston and his
cousin and that any comments he made to the contrary were simply
bragging, we find that this, too, presents a credibility issue which the
court resolved against him.
Tate further alleges that the evidence was insufficient to support
the district court's enhancement for possession of a firearm because
he denied ownership of the weapon or knowledge that it was in the
vehicle. We disagree. The Government need only prove that the
enhancement is applicable by a preponderance of the evidence, and
the district court's factual determinations must be upheld unless they
are clearly erroneous. United States v. Urrego-Linares, 879 F.2d
1234, 1237-38 (4th Cir. 1989). In addition, "[t]he adjustment should
be applied if the weapon was present, unless it is clearly improbable
that the weapon was connected with the offense." USSG § 2D1.1,
comment. (n.3).
In the present case, we find that the record supports the district
court's determination that Tate's drug sentence should be enhanced.
Boston informed investigators that Tate usually carried a firearm
under the front seat of his vehicle during drug transactions.6 In addi-
tion, the holster was found lying in plain view on the front passenger
seat. Moreover, even though Tate alleged he was going to meet an old
friend and did not need a firearm, the district court properly con-
cluded that he was carrying a large amount of cash and would return
with a large quantity of crack cocaine. As a result, it was not clearly
improbable that the firearm was available for Tate's use in connection
with his drug trafficking if necessary. Since the evidence supports the
district court's finding that Tate possessed a firearm in connection
with his drug trafficking offense and that he played a supervisory role
in the conspiracy, he was not eligible for sentencing under the "safety
valve" provision. See 18 U.S.C. § 3553(f) (1994); USSG § 5C1.2.
Finally, we reject Tate's assertion that he was entitled to a down-
ward departure because of his unusual acceptance of responsibility,
minor role in the offense, and temporary withdrawal from the
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6 Although Tate's sister testified that the firearm and vehicle belonged
to her, possession, not ownership, is the issue.
4
conspiracy.7 It is well-settled that a district court's decision not to
grant a motion for downward departure is not reviewable unless the
court erroneously believed that it lacked the authority to depart. See
United States v. Bayerle, 898 F.2d 28, 30-31 (4th Cir. 1990). In the
present case, the district court heard Tate's arguments on these issues
and properly determined that a departure was not warranted under the
circumstances. There is nothing in the record suggesting that the court
believed that it lacked the authority to grant Tate's motion.
We therefore affirm Tate's conviction and sentence. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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7 Tate alleges that he only returned to the drug trade at Boston's urging.
5