United States v. Byrd , 208 F. App'x 206 ( 2006 )


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  •                             UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 05-5270
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    versus
    SAMUEL DAVIS BYRD,
    Defendant - Appellant.
    Appeal from the United States District Court for the Western
    District of North Carolina, at Asheville.  Lacy H. Thornburg,
    District Judge. (CR-05-10)
    Submitted:   October 31, 2006             Decided:   December 5, 2006
    Before WILKINSON, WILLIAMS, and GREGORY, Circuit Judges.
    Affirmed by unpublished per curiam opinion.
    David G. Belser, BELSER & PARKE, P.A., Asheville, North Carolina,
    for Appellant. Gretchen C. F. Shappert, United States Attorney,
    Charlotte, North Carolina; Amy E. Ray, Assistant United States
    Attorney, Asheville, North Carolina, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    Samuel Davis Byrd pled guilty to possession of 500 grams
    of cocaine with intent to distribute, 
    21 U.S.C. § 841
    (a) (2000).
    Because he had a prior felony drug conviction, Byrd was subject to
    an enhanced statutory minimum sentence of ten years.             
    21 U.S.C.A. §§ 841
    (b)(1)(B), 851 (West 1999 & Supp. 2006).              Byrd appeals his
    ten-year sentence, contending that the district court clearly erred
    in determining that he did not qualify for a sentence below the
    mandatory    minimum     under   the    safety   valve    provision.       U.S.
    Sentencing Guidelines Manual § 5C1.2 (2005).              We affirm.
    In December 2004, Byrd was stopped by a state trooper on
    the interstate in North Carolina for erratic driving.                  Byrd was
    driving a car that had been rented two days earlier in Charlotte,
    North Carolina, but he told the trooper he had been working in Ohio
    for several days. Byrd seemed nervous, but not otherwise impaired,
    and his story was inconsistent, so the trooper asked to search his
    car.   When Byrd declined to give his consent, the trooper called
    for backup and a drug dog alerted twice on the car.             In the trunk
    of the car, the trooper discovered four packages of cocaine with a
    total weight of 4.03 kilograms.         After his guilty plea in May 2005,
    Byrd was interviewed by two federal agents in the presence of his
    attorney.     In   the    presentence     report,   the    probation    officer
    recommended a base offense level of 30 under USSG § 2D1.1, and a
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    two-level     reduction   under    §   2D1.1(b)(7),1    noting      that     Byrd
    “appear[ed] to meet the criteria set forth in subdivisions (1) -
    (5) of § 5C1.2,” the safety valve provision.            With a three-level
    adjustment for acceptance of responsibility, the final offense
    level was 25.    Byrd was in criminal history category I,2 which gave
    him a recommended advisory guideline range of 57-71 months.                  The
    probation   officer   noted     that   Byrd   was   subject   to    a   ten-year
    mandatory minimum sentence, but could be sentenced below the
    mandatary minimum if he met the five criteria for sentencing under
    the safety valve provision.
    Neither Byrd nor the government filed objections to the
    presentence     report.    At    the   sentencing    hearing,      when    Byrd’s
    attorney asked the court to clarify whether Byrd qualified for a
    sentence under the safety valve provision, the government asserted
    that Byrd did not qualify because he had not given a complete and
    truthful statement of all information he had concerning the offense
    to comply with the fifth criteria.
    1
    The probation officer cited § 2D1.1(b)(6) because he used the
    2004 Guidelines Manual in preparing the presentence report. When
    Byrd was sentenced in December 2005, the 2005 Guidelines Manual
    applied. See USSG § 1B1.11.
    2
    Byrd did not receive any criminal history points for the 1994
    felony drug conviction. The conviction was over ten years old, and
    Byrd’s sentence of six months confinement apparently concluded more
    than ten years before the instant offense occurred.       See USSG
    § 4A1.2(e).
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    The government reminded the court that Byrd’s offense
    involved his possession of four kilograms of cocaine in a bag in
    the trunk of his car, and that Byrd initially claimed the bag was
    not his, although Byrd had the key for the locked bag on his
    person.        In his interview with the agents following his guilty
    plea, Byrd said he did not know who the cocaine in his trunk came
    from or where it was going.
    The government then informed the court that Byrd was
    stopped on the interstate near Spartanburg, South Carolina, six
    months earlier, in July 2004, for driving too closely to another
    car.       Because Byrd and the driver of the other car gave conflicting
    accounts of why they were traveling together, Byrd’s car was
    searched and a bag containing $22,000 in cash was found in the
    trunk of his car.             Byrd denied ownership or knowledge of the
    money.3       The government pointed out that Byrd’s conduct in the
    instant offense was similar.
    At the court’s request, Matt Barden, one of the Drug
    Enforcement       Administration      agents   who    had    interviewed    Byrd,
    testified.        He   said    that   Byrd   told   them    he   simply   received
    information in a cell phone call about where to pick up the car and
    where to drop it off, but that “he had absolutely no idea who it
    was that he dropped the car off to, [or] how to get a hold of
    3
    Byrd was not charged with any crime in connection with this
    incident.
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    them.”      Barden said that was not how the dope business was
    conducted currently. Barden said he and the other agent thought it
    highly unlikely that Byrd would be transporting four kilograms of
    cocaine worth about $80,000, but would be unable to provide any
    names (even nicknames) or telephone numbers for the people who told
    him to pick up the drugs or the people to whom he intended to
    deliver the drugs, even though Byrd possessed several cell phones
    and pagers when he was arrested.          Barden testified that he did not
    believe Byrd had provided all the information he had concerning the
    offense.
    The district court made the following findings:
    After considering the evidence presented about the
    circumstances involved in the case, the stop, the amount
    of drugs involved, the common practice in the drug
    business described by the agent, the value of the drugs,
    the circumstances under which the defendant related to
    the officers how the drugs were obtained, the distances
    traveled and so forth, the Court finds that the defendant
    has not, in fact, complied with the limitation or
    applicability of statutory minimum sentences in certain
    cases set out in Section 5C1.2 . . . and as a result
    thereof, the sentence to be imposed is the statutory
    minimum of 120 months.
    To qualify for a reduced sentence under § 5C1.2, a
    defendant     must   truthfully    disclose       to   the    government     all
    information    and   evidence     he    has    concerning    the   offense    of
    conviction and all relevant conduct.            See 
    18 U.S.C.A. § 3553
    (f)(5)
    (West 2000 & Supp. 2006); USSG § 5C1.2(a)(5).                The defendant is
    obliged to reveal “all he knows concerning both his own involvement
    and that of any co-conspirators.”              United States v. Ivester, 75
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    F.3d 182, 184 (4th Cir. 1996).                  Further, the defendant has the
    burden   of    showing       that   he    has   affirmatively     acted   to     supply
    truthful      information      to    the    government.      Id.    at    185.      The
    sentencing court’s decision is a factual finding reviewed for clear
    error.   United States v. Wilson, 
    114 F.3d 429
    , 432 (4th Cir. 1997).
    Byrd argues first that the government waived its right to
    challenge the applicability of the safety valve provision by
    failing to file an objection to the presentence report, which
    stated that Byrd appeared to qualify for a sentence under § 5C1.2.
    Rule 32(f)(1) of the Federal Rules of Criminal Procedure provides
    that, “[w]ithin 14 days after receiving the presentence report, the
    parties must state in writing any objections, including objections
    to material information, sentencing guideline ranges, and policy
    statements, contained in or omitted from the report.”4                         Because
    Byrd did not raise this issue at sentencing, our review is for
    plain error.        United States v. Olano, 
    507 U.S. 725
    , 732-37 (1993)
    (unpreserved error may be corrected only if error occurred, that
    was plain, and that affects substantial rights, and if failure to
    correct error would seriously affect the fairness, integrity, or
    public reputation of judicial proceedings).
    The    sentencing      court’s       consideration    of    sentencing
    enhancements        raised    by    the    government   in   an    untimely      manner
    4
    This requirement was added in a 1995 amendment to Rule 32.
    See United States v. Morsley, 
    64 F.3d 907
    , 914 n.4 (4th Cir. 1995).
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    violates Rule 32.       United States v. Soto-Beniquez, 
    356 F.3d 1
    , 52
    (1st Cir. 2003).        The error may be cured if the court grants a
    continuance to allow the defendant to respond to the government’s
    late objection.        Id.; see also United States v. Young, 
    140 F.3d 453
    , 457 (2d Cir. 1998) (finding no error where government asserted
    error   four    days    before    sentencing,       district    court   directed
    preparation     of   revised     presentence      report,   and   parties     were
    afforded fourteen days to object to revised presentence report);
    United States v. Ellis, 
    975 F.2d 1061
    , 1066 (4th Cir. 1992)
    (similar local rule was substantially complied with where defense
    counsel had notice of government’s objections before sentencing).
    If the error is not preserved, it may not meet the test for plain
    error if the basis for the enhancement is so obvious that the
    sentencing cannot be deemed a miscarriage of justice.                        Soto-
    Beniquez, 356 F.3d at 53 (holding that government’s late argument
    for   firearm   enhancement       was    no     surprise   in   light   of   trial
    testimony).
    The government asserts that it did not object to the
    presentence report because the probation officer “stated only that
    Defendant ‘may’ be entitled to such relief [under the safety
    valve], leaving the final determination to the court.”                       Thus,
    “[t]here was no finding to which the Government needed to object
    . . . .”   In taking this position, the government ignores the fact
    that it did not agree with the probation officer’s recommendation
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    that Byrd receive a two-level reduction under § 2D1.1(b)(6) because
    he appeared to meet the requirements set out in § 5C1.2.5
    However, at sentencing Byrd did not ask for a continuance
    so that he could prepare a response or schedule another interview
    with the agents.   Moreover, in this appeal, he does not claim that
    he was denied the opportunity to provide additional information
    that would have made him eligible for a sentence under the safety
    valve provision.    He argues only that the government waived its
    objection by not making it in a timely manner and that the district
    court erred in considering the issue at sentencing.      Therefore,
    while the district court’s consideration of the issue violated Rule
    32, and the error is plain, we conclude that it did not violate
    Byrd’s substantial rights.
    Byrd next contends that the court’s findings were vague
    and conclusory.    Rule 32(i)(3)(B) requires only that the district
    court rule on any disputed matter and append a copy of its
    determination to the presentence report.   The court complied with
    the rule and, taken in context, considering the government’s
    argument and the agent’s testimony, the court’s findings were
    adequate to explain its reasoning.
    Principally, Byrd argues that the court’s finding was
    clearly erroneous because the government did not prove that he had
    5
    In addition, had the government alerted Byrd to its position
    before the sentencing hearing, Byrd would have had an opportunity
    to reconsider the statement he made to the agents.
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    failed to disclose specific information he possessed, but rather
    relied on the agent’s hunch that Byrd knew more than he disclosed.
    The     district    court    may     base     its   decision    concerning      the
    truthfulness of information provided by a defendant on an agent’s
    testimony and “its own credibility assessments.” See United States
    v. O’Dell, 
    204 F.3d 829
    , 838 (8th Cir. 2000).                  The safety valve
    benefit may be denied if the district court determines that the
    defendant is not credible, see United States v. Montes, 
    381 F.3d 631
    , 636-37 (7th Cir. 2004), or if the defendant refuses to
    disclose the source of drugs in his possession.                United States v.
    Gambino, 
    106 F.3d 1105
    , 1111-12 (2d Cir. 1997).
    In this case, the district court heard evidence that, six
    months earlier, Byrd denied any knowledge of $22,000 in cash found
    in the trunk of his car.           Upon his arrest for possession of four
    kilograms of cocaine discovered in the trunk of his car, he first
    claimed that the locked bag containing the drugs was not his,
    despite having the key to the bag on his key chain.                    The court
    found    not    credible    Byrd’s    later    claim   that    he   knew   he   was
    transporting drugs, but did not know anyone else involved, and had
    no idea how to contact anyone else involved.             We are satisfied that
    the court’s determination was not clearly erroneous.
    We therefore affirm the sentence imposed by the district
    court.    We dispense with oral argument because the facts and legal
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    contentions are adequately presented in the materials before the
    court and argument would not aid the decisional process.
    AFFIRMED
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