United States v. Hampton ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4525
LIONEL HAMPTON, a/k/a Train,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 97-4526
DESHONAL HAMPTON, a/k/a Desinal,
a/k/a Mickey,
Defendant-Appellant.
Appeals from the United States District Court
for the Northern District of West Virginia, at Wheeling.
Frederick P. Stamp, Jr., Chief District Judge.
(CR-97-10)
Submitted: April 21, 1998
Decided: July 24, 1998
Before LUTTIG, WILLIAMS, and MOTZ, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Hunt L. Charach, Federal Public Defender, Charleston, West Vir-
ginia; John J. Pizzuti, Wheeling, West Virginia, for Appellants. Wil-
liam D. Wilmoth, United States Attorney, Thomas O. Mucklow,
Assistant United States Attorney, Martinsburg, West Virginia, for
Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Lionel Hampton and his brother, Desinal Hampton, 1 pled guilty to
conspiracy to possess with intent to distribute and to distribute crack
cocaine in violation of 21 U.S.C. § 846 (1994). Lionel was sentenced
to a term of 135 months imprisonment. Desinal received a 110-month
sentence. Both appeal their sentences on the ground that the district
court abused its discretion in denying a continuance of sentencing and
an extension of modified bond conditions to permit them to continue
their cooperation in the hope of earning a substantial assistance depar-
ture under USSG § 5K1.1, p.s.2 Lionel also alleges that the district
court clearly erred in finding that he was a manager or supervisor in
the offense, see USSG § 3B1.1(b), and in assessing him one criminal
history point for a fine, see USSG § 4A1.1(c). Desinal has requested
leave to file a pro se supplemental brief in which he claims that the
district court committed plain error in sentencing him based on the
amount of crack stipulated in his plea agreement. We grant leave to
file the supplemental brief and affirm both sentences.
_________________________________________________________________
1 This Appellant was charged under the name "Deshonal Hampton,"
but it appears from the record that his true name is"Desinal." We will
therefore refer to him as "Desinal."
2 U.S. Sentencing Guidelines Manual (1995). The Hamptons were sen-
tenced in June 1997.
2
At their joint guilty plea hearing on March 31, 1997, the Hamptons
requested that their bond conditions be relaxed to allow them to make
controlled purchases of drugs in cooperation with a drug task force
agent in Morgantown, West Virginia. The district court granted the
motion for a sixty-day period ending May 31, 1997. During this time,
the Hamptons attempted to make controlled drug buys in Morgan-
town without success.
On June 12, 1997, the Hamptons moved to continue their sentenc-
ing hearings, scheduled for June 23 and June 30, to an unspecified
date and to extend their modified bond conditions to allow them addi-
tional time for cooperation. However, in an order filed June 17, 1997,
the district court denied the motions, finding them untimely and
vague concerning the amount of additional time needed, what specific
investigations were to be concluded, and the likelihood that a substan-
tial assistance motion would result for either defendant.
The Hamptons then filed a joint motion to reconsider asking for an
additional fifteen days so that they could attempt to make controlled
buys in Wheeling, West Virginia. They cited United States v.
Goossens, 84 F.3d 697 (4th Cir. 1996), in which we held that a defen-
dant could not be prohibited from cooperating with law enforcement
officials as a condition of release unless extraordinary circumstances
required such a condition to assure a defendant's appearance or to
protect public safety. Id. at 703. At Desinal's sentencing, the district
court considered and denied the joint motion to reconsider. The gov-
ernment opposed the motion on the ground that further efforts on the
part of the defendants were unlikely to produce positive results.
A day later, Lionel moved again to amend his bond conditions and,
in a supplemental motion, asserted that he could make controlled buys
from two specific persons in Wheeling. At Lionel's sentencing, the
government did not oppose a continuance of sentencing or the exten-
sion of modified bond conditions to permit Lionel to continue his
efforts to cooperate, and a drug task force agent who was present
stated that an agent would be able to work with Lionel. Nonetheless,
the district court denied the motion to reconsider.
On appeal, the Hamptons contend that the district court should
have granted them an additional fifteen days in which to attempt fur-
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ther cooperation. Their argument presents two issues: whether the dis-
trict court abused its discretion in denying a continuance of
sentencing and whether it erred in denying an extension of the modi-
fied bond conditions. To show that denial of a continuance of sentenc-
ing was an abuse of discretion, a defendant must demonstrate
substantial impairment of his opportunity to secure a fair sentence.
See United States v. Speed, 53 F.3d 643, 644-45 (4th Cir. 1995).
Because the Hamptons' motions were filed a short time before sen-
tencing and after they had been afforded an opportunity to cooperate,
they were not prejudiced by the denial of a continuance. Conse-
quently, we find that the district court did not abuse its discretion in
denying a continuance of sentencing for either Desinal or Lionel.
We also find that the district court did not abuse its discretion in
refusing to extend the modified bond conditions until the date of sen-
tencing. This case is not like Goossens, where the defendant was not
permitted to cooperate with the government. The Hamptons were
afforded a two-month period of cooperation which produced no
results.
We find no merit in Lionel's contention that the district court
clearly erred in finding him a manager or supervisor. The adjustment
applies if the defendant managed or supervised one or more partici-
pants. See USSG § 3B1.1, comment. (n.2). The government presented
reliable evidence at Lionel's sentencing that Lionel obtained sizeable
amounts of crack from two suppliers which he repackaged for sale on
the street. His packages typically sold for $120. Lionel received $100
from each sale and the runner received a $20 rock of crack in pay-
ment for his services. Lionel maintains that the runners sold for other
dealers besides him and that he had no control over any other partici-
pant. However, there was evidence that he stored his crack in his girl-
friend's apartment and on occasion directed her to resupply his
runners. On this evidence, we find no clear error in the district court's
decision to apply the adjustment.
The district court correctly assigned Lionel one criminal history
point for a fine imposed in 1990. See USSG§ 4A1.1(c), comment.
(backg'd). Further, the district court did not plainly err in relying on
Desinal's stipulation that he was responsible for 20-35 grams of
crack. The indictment charged a conspiracy involving crack, not pow-
4
der cocaine, and the amount of crack was not disputed at sentencing.
Therefore, the court was free to adopt the recommended findings in
the presentence report without additional inquiry. See United States
v. Terry, 916 F.2d 157, 162 (4th Cir. 1990).
For the reasons discussed, we affirm the sentences imposed. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
AFFIRMED
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