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 2002-08

United States v. McAllister , 42 F. App'x 646 ( 2002 )


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  •                          UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,              
Plaintiff-Appellee,
v.                             No. 01-4660
SHAWN MCALLISTER,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Asheville.
Lacy H. Thornburg, District Judge.
(CR-00-2)
Submitted: July 25, 2002
Decided: August 16, 2002
Before LUTTIG, MOTZ, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Michael A. Kolb, Charlotte, North Carolina, for Appellant. Robert J.
Conrad, Jr., United States Attorney, Thomas R. Ascik, Assistant
United States Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2                    UNITED STATES v. MCALLISTER
OPINION
PER CURIAM:
Shawn McAllister was convicted by a jury of conspiracy to possess
with intent to distribute cocaine base, in violation of
    21 U.S.C.A. § 846
     (West 1999). McAllister was sentenced to a term of imprison-
ment of 240 months in compliance with Apprendi v. New Jersey,
    530 U.S. 466
     (2000). He appeals his sentence. We affirm.
The district court found McAllister was responsible for at least 1.5
kilograms of cocaine base as a result of his participation in a drug ring
that manufactured and distributed cocaine base from between twenty
and thirty kilograms of cocaine in 1999. Our review of the record
confirms the district court did not clearly err in attributing to McAl-
lister at least 1.5 kilograms of cocaine base for the period of the con-
spiracy from September 1999 to January 2000. See Pinkerton v.
United States,
    328 U.S. 640
     (1946); United States v. Kinter,
    235 F.3d 192
    , 199-202 (4th Cir. 2000), cert. denied,
    532 U.S. 937
     (2001);
United States v. Blake,
    81 F.3d 498
    , 503 (4th Cir. 1996); United
States v. Ricco,
    52 F.3d 58
    , 62 (4th Cir. 1995); United States v. Paz,
    927 F.2d 176
    , 180 (4th Cir. 1991); see also U.S. Sentencing Guide-
lines Manual § 1B1.3 (2000).
McAllister avers that he was a minor participant entitled to an
adjustment pursuant to USSG § 3B1.2, comment. (n.1). Testimony at
trial established that McAllister was a equal partner in the drug ring.
See USSG § 3B1.2, comment. (n.3). We accordingly hold that the dis-
trict court did not err in denying McAllister an adjustment as a minor
participant. See United States v. Akinkoye,
    185 F.3d 192
    , 202 (4th Cir.
1999). This conclusion likewise disposes of McAllister’s claim that
he should have received a downward departure under application note
14 of section 2D1.1. See USSG § 2D1.1, comment. (n.14) (authoriz-
ing downward departure if, inter alia, "the defendant qualifies for a
mitigating role adjustment under § 3B1.2").
Accordingly, we affirm McAllister’s sentence. We dispense with
oral argument because the facts and legal contentions are adequately
presented in the material before the court and argument would not aid
in the decisional process.
AFFIRMED