United States v. Joseph Gady ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4186
JOSEPH GADY, a/k/a Big Eye Jean,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Charleston.
Solomon Blatt, Jr., Senior District Judge.
(CR-96-985)
Submitted: November 16, 1999
Decided: December 27, 1999
Before MOTZ and TRAXLER, Circuit Judges, and
BUTZNER, Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Parks N. Small, Federal Public Defender, Columbia, South Carolina,
for Appellant. J. Rene Josey, United States Attorney, Robert H. Bick-
erton, Assistant United States Attorney, Charleston, South 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Unpublished opinions are not binding precedent in this circuit.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:
Joseph Gady pled guilty to conspiring, between 1991 and 1995, to
possess with intent to distribute and to distribute cocaine and cocaine
base (crack) in South Carolina and elsewhere, see 21 U.S.C. § 846(1994), and was sentenced to a term of 360 months imprisonment.
Gady appeals his sentence, arguing that the district court failed to
make adequate findings in support of its conclusion that he committed
the instant offense while under a sentence of probation, see U.S. Sen-
tencing Guidelines Manual § 4A1.1(d) (1998), and also erred in
imposing two criminal history points under § 4A1.1(d). He further
argues that the district court plainly erred in treating the probationary
sentence and later revocation of the sentence as part of his criminal
history rather than as part of the instant offense. See USSG
§ 4A1.2(a), comment. (n.1). We find no error and affirm.
The offense giving rise to Gady's 1994 Florida probationary sen-
tence occurred in January 1993, when Gady and Mercedoine Allen
(who was not named in the indictment or identified in the presentence
report as a member of the federally charged conspiracy) attempted to
trade Gady's truck for one kilogram of cocaine in Miami, Florida,
where Gady lived. They were dealing with undercover officers and
were arrested. Gady was released on bond in June 1993, and was
arrested in Beaufort, South Carolina, by drug task force agents on
February 19, 1994. He was released in South Carolina a few days
later, on February 23, 1994. On March 16, 1994, Gady was sentenced
in Florida to five years probation for the attempted truck-cocaine
trade. He remained at large until February 1996, when his Florida
probation was revoked. In November 1996, Gady was charged with
the instant offense.
Gady objected to two criminal history points recommended by the
probation officer under § 4A1.1(d) for committing the instant offense
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while on probation. His objection suggested that the conspiracy ended
with his arrest in South Carolina in February 1994, before the sen-
tence of probation was imposed in March 1994. However, the presen-
tence report contained information from Tyrone Moultrie, who said
that he saw Gady and co-defendant Jules Gilson cooking crack in
Beaufort in 1994 and 1995, and Gady did not dispute the statment,
although he claimed that he did not sell crack to Moultrie. Gady
offered no evidence and made no argument concerning criminal his-
tory at the sentencing hearing. Under cross-examination, he admitted
selling crack in Beaufort in 1995. The district court overruled Gady's
criminal history objection.
On appeal, Gady first argues that the district court's finding that he
committed the instant offense while under a sentence of probation
was both inadequate and was based on conduct that occurred before
the probationary sentence was imposed. He points out that the district
court did not make a finding that Gady or any other member of the
conspiracy acted in furtherance of the conspiracy after March 1994.
However, Gady admitted selling crack in South Carolina during 1995,
while he was on probation. We are thus able to discern the factual
basis for the district court's ruling. See United States v. Walker, 29
F.3d 908, 911 (4th Cir. 1994). Any omission in the district court's
finding was harmless error. See Fed. R. Crim. P. 52(a).
Gady also argues that the court plainly erred by including the 1994
Florida sentence in his criminal history as a "prior sentence," instead
of treating it as conduct which was "part of the instant offense."
USSG § 4A1.2(a)(1).* To succeed with a claim of plain error, an
appellant must show that an error occurred, that the error was plain,
that the error affected his substantial rights, and that the error should
be corrected to protect the fairness, integrity, or public reputation of
judicial proceedings. See United States v. Olano , 507 U.S. 725, 731-
32 (1993).
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*Had the kilogram of cocaine been included in Gady's relevant con-
duct, it would not have changed his offense level. However, eliminating
the three criminal history points Gady received for the four-year proba-
tion revocation sentence would have reduced his criminal history score
from five points to two points and placed him in category II instead of
category III.
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Under § 4A1.2(a)(1), criminal history points are added only for
prior sentences imposed "for conduct not part of the instant offense,"
that is, conduct which is not relevant conduct under§ 1B1.3. USSG
§ 4A1.2, comment. (n.1). The attempted truck-for-cocaine trade was
clearly part of the same course of conduct as the charged conspiracy.
See USSG § 1B1.3(a)(2). However, under§ 4A1.2(a)(1), the inquiry
is whether the prior conduct was actually part of the instant offense
as charged in the indictment. See United States v. McManus, 23 F.3d
878, 888 (4th Cir. 1994) (inquiry should be whether prior sentence
and instant offense involve conduct which is "severable into two dis-
tinct offenses.") (quoting United States v. Beddow, 957 F.2d 1330,
1338 (6th Cir. 1992)). Here, the district court did not make such an
inquiry because Gady did not raise the issue. Because it is not plain
from the information in the presentence report that the truck-cocaine
trade Gady attempted with Allen was part of the conspiracy charged
in the federal indictment rather than a separate conspiracy, we do not
find that plain error occurred.
For the reasons discussed, we affirm the sentence imposed. We dis-
pense 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
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