United States v. Locklear ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4495
PEGGY ANN LOCKLEAR,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Wilmington.
James C. Fox, Senior District Judge.
(CR-96-49-F)
Submitted: January 25, 2002
Decided: February 13, 2002
Before WIDENER, MOTZ, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Sue A. Berry, Wilmington, North Carolina, for Appellant. John Stuart
Bruce, United States Attorney, Anne M. Hayes, Assistant United
States Attorney, Yvonne V. Watford-McKinney, Assistant United
States Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. LOCKLEAR
OPINION
PER CURIAM:
Peggy Locklear pled guilty to one count of conspiracy to possess
with intent to distribute and to distribute crack cocaine, in violation
of 21 U.S.C.A. §§ 841(a)(1), 846 (West 1999); and one count of dis-
tribution of crack cocaine and aiding and abetting, in violation of
§ 841(a)(1) and 18 U.S.C. § 2 (1994). Locklear failed to appear at her
original sentencing hearing and remained a fugitive for over four
years. After her apprehension, she was sentenced to a total of 360
months imprisonment, which she now appeals.
Locklear first argues that she had only a minor role in the offenses,
and was therefore entitled to a two level reduction in her offense level
under § 3B1.2 of the Sentencing Guidelines.* We review a district
court’s decisions concerning adjustments for the defendant’s role in
the offense for clear error. See United States v. Perkins, 108 F.3d 512,
518 (4th Cir. 2000). In determining whether a role in the offense
adjustment is appropriate, we compare "the acts of each participant in
relation to the relevant conduct for which the participant is held
accountable" and evaluate "each participant’s individual acts and rela-
tive culpability against the elements of the offense of conviction."
United States v. Daughtrey, 874 F.2d 213, 216 (4th Cir. 1989). In
conducting this inquiry, we consider "whether ‘the defendant’s con-
duct is material or essential to committing the offense.’" United States
v. Akinkoye, 185 F.3d 192, 202 (4th Cir. 1999) (quoting United States
v. Palinkas, 938 F.2d 456, 460 (4th Cir. 1991)), cert. denied, 528 U.S.
1177 (2000). This court has held that the denial of a role reduction
sought by the defendant based upon his status as a driver was not
clearly erroneous. See United States v. Sharp, 927 F.2d 170, 176 (4th
Cir. 1991).
Our review of the record convinces us that Locklear played a criti-
cal role in ensuring the completion of the sale of crack cocaine by her
son on two different occasions. The district court properly denied
Locklear’s request for a role reduction.
*U.S. Sentencing Guidelines Manual (2000).
UNITED STATES v. LOCKLEAR 3
Locklear next asserts that the district court erroneously included six
prior convictions in California state court for being under the influ-
ence of a controlled substance in her criminal history. She argues that
because the Guidelines specifically exclude sentences for public
intoxication, see USSG § 4A1.2(c)(2), her convictions should have
been excluded from her criminal history. In determining whether an
offense is similar to the offenses listed in § 4A1.2(c)(2), the elements
of the offense in question are examined for similarity to the elements
of the excluded offenses. See United States v. Harris, 128 F.3d 850,
854-55 (4th Cir. 1997). As the district court noted, five of the six con-
victions involved Locklear being under the influence of cocaine,
which, unlike alcohol, is illegal to possess or use. We have examined
the relevant provisions of California law and conclude that the offense
of being under the influence of a controlled substance is not suffi-
ciently similar to the offense of public intoxication to merit exclusion
under § 4A1.2(c)(2). See Cal. Penal Code § 647(f); Cal. Health &
Safety Code §§ 11054, 11055, 11550(a) (West 2002); United States
v. Martinez, 956 F.2d 891, 893 (9th Cir. 1992).
Accordingly, we affirm Locklear’s convictions and sentence. 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