United States v. Coleman ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5611
DAVID COLEMAN,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of West Virginia, at Wheeling.
Frederick P. Stamp, Jr., Chief District Judge.
(CR-95-4)
Submitted: June 20, 1996
Decided: July 16, 1996
Before HALL, WILKINS, and HAMILTON, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Joseph J. Harris, Morgantown, West Virginia, for Appellant. Wil-
liam D. Wilmoth, United States Attorney, Sam G. Nazzaro, Assistant
United States Attorney, Wheeling, West Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
David Coleman appeals the 40-month sentence imposed by the dis-
trict court after he pled guilty to conspiracy to distribute crack
cocaine, 21 U.S.C.A. § 846 (West Supp. 1996). He contends that the
district court clearly erred in refusing to give him a minimal role or
a minor role adjustment. United States Sentencing Commission,
Guidelines Manual § 3B1.2 (Nov. 1994). We affirm.
During an investigation into drug trafficking in an area of Wheel-
ing, West Virginia, Coleman approached two confidential informants
on two separate occasions. On the first occasion, Coleman arranged
for them to buy crack from an unidentified male. On the second occa-
sion, he arranged a sale by co-defendants Nicole Moseby and Dickie
Leeper. Coleman was paid in crack each time. At his guilty plea hear-
ing, the government agent testified that Coleman had an agreement
with Moseby, Leeper, and others by which he facilitated their crack
sales in return for crack for his own use.
As part of the plea agreement, the government stipulated that Cole-
man's relevant conduct involved less than a gram of crack and agreed
to recommend a minimal role adjustment. The probation officer, how-
ever, recommended no mitigating role reduction because Coleman
understood the activities of his co-conspirators and because he
actively promoted crack sales. The probation officer also pointed out
that Coleman was being held responsible only for the two transactions
with the confidential informants. Both Coleman and the government
objected to the probation officer's recommendation and argued for the
adjustment at the sentencing hearing. However, the district court
agreed with the probation officer and found that Coleman was not a
minimal participant.
A minimal role adjustment may be given if the sentencing court
finds that the defendant was "plainly among the least culpable of
those involved in the conduct of the group," as indicated by his "lack
of knowledge or understanding of the scope and structure of the enter-
prise and of the activities of others." USSG§ 3B1.2, comment. (n.1).
The adjustment is meant to be used infrequently. USSG § 3B1.2,
2
comment. (n.2). It is the defendant's burden to prove to the district
court by a preponderance of the evidence that he is entitled to the
adjustment. United States v. Reavis, 48 F.3d 763, 769 (4th Cir.), cert.
denied, 63 U.S.L.W. 3890 (U.S. June 19, 1995) (No. 94-9316).
In making its determination, the district court is to "not only com-
pare the defendant's culpability to that of other participants, but also
``measur[e] each participant's individual acts and relative culpability
against the elements of the offense of conviction.'" Id. (quoting
United States v. Daughtrey, 874 F.2d 213, 216 (4th Cir. 1989)). The
district court's decision is reviewed for clear error. Reavis, 48 F.3d at
768.
Coleman argued that the adjustment should apply because he was
primarily a crack user interested in obtaining crack for his personal
use. However, he presented no evidence which would have given the
court a different understanding of his role in the conspiracy. Conse-
quently, we find that the district court did not clearly err in adopting
the probation officer's recommendation.
Coleman also contends that the district court clearly erred in failing
to consider a two-level adjustment for a minor role. USSG
§ 3B1.2(b). A minor participant is one who"is less culpable than
most other participants, but whose role could not be described as min-
imal." Id. A defendant whose conduct is somewhere between "minor"
and "minimal" may receive a three-level reduction. Coleman did not
request either a two-level or three-level adjustment in the district
court. We find that the district court did not plainly err in failing to
address the issue or in failing to make a two-level or three-level
reduction.
We therefore affirm the sentence. 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
3