United States v. Binns , 83 F. App'x 539 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 03-4530
KENNETH STERLING BINNS,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
John T. Copenhaver, Jr., District Judge.
(CR-02-191)
Submitted: November 26, 2003
Decided: December 22, 2003
Before NIEMEYER, MICHAEL, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Carl J. Roncaglione, Jr., Charleston, West Virginia, for Appellant.
Kasey Warner, United States Attorney, Michael H. Spencer, Assistant
United States Attorney, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. BINNS
OPINION
PER CURIAM:
Kenneth Sterling Binns pled guilty to aiding and abetting the pos-
session with intent to distribute of a quantity of cocaine and more than
5 grams of cocaine base (crack), 21 U.S.C.A. § 841(a), (b)(1)(B)
(West 1999 & Supp. 2003), and was sentenced to a term of 108
months’ imprisonment. Binns appeals his sentence, arguing that the
district court clearly erred in denying him a mitigating role adjustment
under U.S. Sentencing Guidelines Manual § 3B1.2 (2002), and plainly
erred in considering immunized information to deny him the adjust-
ment. See USSG § 1B1.8. We affirm.
The incident underlying the offense to which Binns pled guilty
occurred in June 2002, when he and his co-defendant, Richard John-
son, under surveillance by law enforcement officers, were observed
driving in a minivan which proved to contain 35.3 grams of crack and
a loaded 9mm firearm. Binns was arrested several months later,
entered into a proffer agreement, and divulged information about the
drug organization in which he was a participant. Johnson also cooper-
ated. In sentencing Binns, the district court relied in part on the activ-
ity which was observed while Binns was under surveillance, and in
part on information provided by Johnson, to determine that Binns did
not have a minor or minimal role in the offense. The district court’s
determination as to a defendant’s role in the offense is a factual find-
ing reviewed for clear error. United States v. Reavis, 48 F.3d 763, 768
(4th Cir. 1995). The defendant bears the burden of proving by a pre-
ponderance of the evidence that he is entitled to a minor role adjust-
ment. United States v. Nelson, 6 F.3d 1049, 1058 (4th Cir. 1993).
Under USSG § 1B1.8, information provided by a defendant about
the unlawful activities of others pursuant to a cooperation agreement
may not be used to determine his guideline range. Information sepa-
rately obtained from co-defendants may be considered, see United
States v. Baird, 218 F.3d 221, 231 (3d Cir. 2000), unless the informa-
tion "was elicited solely as a result of, or prompted by, the defen-
dant’s cooperation." See also United States v. Gibson, 48 F.3d 876,
879 (5th Cir. 1995); United States v. Davis, 912 F.2d 1210, 1213
(10th Cir. 1990).
UNITED STATES v. BINNS 3
Binns argues first that there were no facts apart from immunized
information to justify denying him a mitigating role adjustment. How-
ever, he has failed to identify any information that actually demon-
strates that he had a minor role in the drug organization. Even if the
district court had been limited to considering Binns’ activity on June
11, 2002, while he was under surveillance, that activity did not pro-
vide enough information to establish any kind of role adjustment.
More importantly, the district court was free to consider the infor-
mation contained in Johnson’s statement. Binns did not produce any
evidence that Johnson’s statement was obtained as a result of Binns’
own cooperation or that, had Binns not cooperated, Johnson would
also have refused to cooperate. Gibson, 48 F.3d at 878-79; Davis, 912
F.2d at 1213. Binns suggests that Johnson’s statement was obtained
"as a direct result of the government’s entering into a Proffer Agree-
ment with Mr. Binns earlier on December 6, 2002 . . . ." (Appellant’s
Br. at 24). However, he did not present any evidence to this effect in
the district court. Therefore, the district court did not clearly err in
denying Binns a mitigating role adjustment.
Binns also claims that the district court’s reference to information
provided by Johnson constituted 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 fair-
ness, integrity, or public reputation of judicial proceedings). Because
the district court was not barred from considering Johnson’s state-
ment, no error occurred.
We therefore affirm the sentence imposed by the district court. 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