United States v. Christmas ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4184
JAMES A. CHRISTMAS,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Virginia, at Charlottesville.
James H. Michael, Jr., Senior District Judge.
(CR-95-50)
Submitted: January 30, 1998
Decided: February 19, 1998
Before ERVIN, HAMILTON, and LUTTIG, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Marshall M. Slayton, MARTIN & RAYNOR, P.C., Charlottesville,
Virginia, for Appellant. Robert P. Crouch, Jr., United States Attorney,
Thomas J. Bondurant, Jr., Assistant United States Attorney, Roanoke,
Virginia, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
James A. Christmas pled guilty to possession of crack cocaine with
intent to distribute while on federal release in violation of 21 U.S.C.
§ 841(a)(1) (1994), and 18 U.S.C. § 3147 (1994). The court sentenced
Christmas to 117 months imprisonment, a consecutive three-month
term under § 3147, and four years of supervised release. The court
also ordered that twenty-five months of the sentence run partially con-
currently with an undischarged federal sentence. See USSG
§ 5G1.3(c).* Christmas appeals his sentence, contending that the gov-
ernment failed to prove by a preponderance of the evidence the dis-
puted information in the presentence report and that the district court
erred in finding that $2519 in cash seized from him at the time of his
arrest was drug proceeds and in converting the cash into its drug
equivalent. Finding no error, we affirm.
Christmas first contends that the government failed to meet its bur-
den of proof at the sentencing hearing regarding whether the cash
seized was drug proceeds. Contrary to Christmas' assertion, however,
the defendant--not the government--must make an affirmative show-
ing that disputed information in the presentence report is unreliable
or untrue. See United States v. Terry, 916 F.2d 157, 162 (4th Cir.
1990).
Next, Christmas challenges the district court's factual finding that
the cash seized was drug proceeds. At the sentencing hearing, the dis-
trict court noted the inconsistency between Christmas' testimony that
a portion of the $2519 came from a Sears paycheck and about $2200
came from a tax refund received in April 1995 and Christmas' wife's
testimony that she could not recall when they received a $1500
refund. Moreover, the district court considered Christmas' failure to
provide any documentation from the tax service that prepared his tax
return or from Internal Revenue as to the amount of refund due
Christmas. We therefore find no clear error in the district court's find-
ing that the $2519 was drug proceeds. See United States v. Hall, 93
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*U.S. SENTENCING GUIDELINES MANUAL (1995).
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F.3d 126, 132 (4th Cir. 1996), cert. denied, ___ U.S. ___, 65
U.S.L.W. 3586 (U.S. Feb. 24, 1997) (No. 96-6791) (stating standard
of review).
Finally, Christmas complains that the district court erred in deter-
mining the amount of drugs attributable to him because the court con-
verted the $2519 in cash to its crack equivalent. Conversion of money
derived from drug trafficking to its equivalent drug amount is permis-
sible. See USSG § 2D1.1, comment. (n.12); United States v. Hicks,
948 F.2d 877, 882-83 (4th Cir. 1991). And contrary to Christmas'
assertion, the court did not include the additional 12.59 grams of
crack cocaine when establishing the base offense level. Consequently,
we find no clear error in the district court's finding that Christmas
was accountable only for the amount of drugs stipulated in the plea
agreement.
We therefore affirm Christmas' sentence. We dispense with oral
argument because the facts and legal contentions are adequately pres-
ented in the materials before the court and argument would not aid the
decisional process.
AFFIRMED
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