United States v. Jeffrey G. Rivers ( 2000 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4448
JEFFREY G. RIVERS,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4495
ERICKA LYNN ELSTON,
Defendant-Appellant.
Appeals from the United States District Court
for the District of South Carolina, at Charleston.
Patrick Michael Duffy, District Judge.
(CR-98-890)
Submitted: February 29, 2000
Decided: April 25, 2000
Before WILKINS and MOTZ, Circuit Judges,
and BUTZNER, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Robert A. Ratliff, Cincinnati, Ohio; Ann Briks Walsh, Assistant Fed-
eral Public Defender, Charleston, South Carolina, for Appellants. J.
Rene Josey, United States Attorney, Miller W. Shealy, Jr., Assistant
United States Attorney, Charleston, South Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Jeffrey Rivers pled guilty to conspiracy to possess with intent to
distribute and to distribute crack cocaine, 21 U.S.C. § 846 (1994) and
was sentenced to ten years imprisonment. Ericka Elston pled guilty
to misprision of a felony, 18 U.S.C. § 4 (1994), and was sentenced to
twenty-one months imprisonment. Rivers appeals, claiming that the
district court clearly erred in assigning the two-level enhancement for
possession of a firearm, U.S. Sentencing Guidelines Manual
§ 2D1.1(b)(l) (1998), and that the government violated the terms of
the plea agreement by seeking the enhancement under 21 U.S.C.
§§ 841(b)(l)(B), 851 (1994). Elston appeals, claiming that the district
court improperly denied her motion for an independent laboratory
testing of the drugs involved in her case and erred in refusing to apply
the safety valve provision, USSG, § 2D1.1(b)(6).
Rivers first contends that the district court erred in applying the
enhancement for possession of a firearm because the offense was
committed at a motel where no weapons were present and no drugs
were found in the apartment where the weapons were found. The gov-
ernment was not required, however, to link the weapons directly with
the drugs. See United States v. Harris, 128 F.3d 850, 852 (4th Cir.
1997); USSG § 2D1.1, comment. (n.3) (enhancement should be made
if a firearm is present, unless it is clearly improbable that the firearm
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is connected to the offense). Because Rivers cannot show that it was
clearly improbable that the firearms were connected to the drug
offense, the enhancement was not clearly erroneous. See United
States v. Apple, 962 F.2d 335, 338 (4th Cir. 1992) (possession of
weapon in a place where the conspiracy is carried on is sufficient).
Rivers also claims that the government breached the plea agree-
ment and acted in bad faith by moving for a sentence enhancement
under 21 U.S.C. § 841(b)(1)(B). Here, Rivers and his attorney were
served with a copy of the information prior to entering his guilty plea.
At the Rule 11 hearing, Rivers was informed that the minimum possi-
ble penalty was ten years imprisonment, with a maximum of life
imprisonment and that the court has the authority in some circum-
stances to impose a sentence that is either more severe or less severe
than that called for in the guidelines.
Because the government timely complied with § 851 and the plea
agreement was silent on this issue, Rivers cannot show that the gov-
ernment breached the plea agreement or acted in bad faith in seeking
the enhancement.
Elston first claims that the district court erred in refusing to allow
an independent laboratory evaluation to determine the weight of the
drugs. The drug analysis performed by the South Carolina Law
Enforcement Division determined that the amount of cocaine was
20.14 grams. Elston does not dispute that the substance was in fact
cocaine base. She does not suggest that the testing done by the South
Carolina Law Enforcement Division was improper or tainted, or that
the evidence was improperly handled by law enforcement, or that the
evidence was tampered with in any way. Accordingly, we find no
abuse of discretion in the district court's refusal to allow an indepen-
dent testing of the drugs at issue.
Finally, Elston argues that the district court erroneously denied her
the benefit of the "safety valve" provision found in USSG
§ 2D1.1(b)(6). A defendant whose base offense level is 26 or greater
and meets the criteria under U.S.S.G. § 5C1.2(1) through (5) and 18
U.S.C. § 3553(f)(1) through (5), will be eligible for a two-level reduc-
tion in the base offense level.
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The base offense level applicable to misprision of a felony is "9
levels lower than the offense level for the underlying offense, but in
no event less than 4 or more than 19." USSG § 2X4.1. The underlying
offense was conspiracy to possess with intent to distribute crack
cocaine. Under USSG § 2D1.1, the base offense level for an amount
of cocaine of at least 20 grams but less than 35 grams is 28. Elston's
base offense level was correctly determined to be 19 (28 less 9);
therefore, she is ineligible for the safety valve reduction.
For the forgoing reasons, we affirm both Rivers' and Elston's sen-
tences. We dispense 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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