United States v. Davis ( 1996 )


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  • UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    v.
    No. 95-5602
    IVORY LEONARD DAVIS, a/k/a Ivory,
    a/k/a Edward Jay Porter,
    Defendant-Appellant.
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    v.                                                                  No. 95-5613
    GREGORY EARL PINNIX,
    Defendant-Appellant.
    Appeals from the United States District Court
    for the Middle District of North Carolina, at Greensboro.
    N. Carlton Tilley, Jr., District Judge.
    (CR-95-27)
    Submitted: July 25, 1996
    Decided: August 14, 1996
    Before LUTTIG and MOTZ, Circuit Judges, and PHILLIPS,
    Senior Circuit Judge.
    _________________________________________________________________
    No. 95-5602 affirmed and No. 95-5613 dismissed by unpublished per
    curiam opinion.
    _________________________________________________________________
    COUNSEL
    Charles A. Lloyd, Greensboro, North Carolina; K. E. Krispen Cul-
    bertson, Greensboro, North Carolina, for Appellants. Walter C. Hol-
    ton, Jr., United States Attorney, Robert M. Hamilton, Assistant
    United States Attorney, Greensboro, North Carolina, for Appellee.
    _________________________________________________________________
    Unpublished opinions are not binding precedent in this circuit. See
    Local Rule 36(c).
    _________________________________________________________________
    OPINION
    PER CURIAM:
    Ivory Leonard Davis and Gregory Earl Pinnix both pled guilty to
    engaging in a conspiracy to possess crack cocaine with intent to dis-
    tribute, 
    21 U.S.C.A. § 846
     (West Supp. 1996). Davis appeals his 131-
    month sentence contending that the district court clearly erred in find-
    ing that he obstructed justice, USSG § 3C1.1, 1 and that it was foresee-
    able to him that Pinnix would possess a firearm during the offense,
    USSG §§ 1B1.3, 2D1.1(b)(1). He also challenges his sentence on con-
    stitutional grounds. Pinnix appeals his 188-month sentence alleging
    that the district court erred in denying him a downward departure for
    diminished capacity, USSG § 5K2.13, p.s., or aberrant behavior,
    USSG, Ch. 1, Pt. A, 4(d), p.s. We affirm the sentence imposed on
    Davis and dismiss Pinnix's appeal.
    In January 1995, Davis sent a courier from New York to North
    Carolina with a kilogram of crack intended for Pinnix. The courier
    was stopped for speeding in Maryland and cooperated with authorities
    after the crack was discovered. Meanwhile, Davis flew to North Caro-
    lina, where Pinnix met him at the airport. The two drove to the motel
    where the courier was waiting with the crack. Pinnix carried a plastic
    _________________________________________________________________
    1 United States Sentencing Commission, Guidelines Manual (Nov.
    1994).
    2
    bag containing $25,890 in cash into the room. Davis and Pinnix then
    removed the crack from a hidden compartment in the courier's car
    and carried it into the motel room. As they were unwrapping the
    crack, they were arrested. A firearm was found under the driver's seat
    of Pinnix's car. Pinnix informed authorities that he began dealing
    crack with his co-defendant in September 1994.
    Davis told the arresting officers that his name was Edward Jay Por-
    ter. He was indicted under that name and entered a not guilty plea
    before a district court judge. Two months later, while plea negotia-
    tions were ongoing, the government received information that he had
    used an alias. Davis then revealed his true name and the government
    learned that charges of attempted murder and other violent acts were
    pending against him in New Jersey.
    Davis's conduct clearly warranted an adjustment for obstruction of
    justice because he willfully provided materially false information to
    the district court judge when he entered his plea under a false name.
    USSG § 3C1.1, comment. (n.3(f)). False information is material if it
    would tend to influence an issue under determination. Id. (n.5).
    Davis's correct identity and past criminal conduct was relevant to the
    issue of detention and, potentially, to the determination of his criminal
    history and his sentence. Although Davis's true identity was revealed
    before he was sentenced, and the pending state charges did not
    increase his criminal history score, the adjustment is properly given
    for an attempt to obstruct justice even when it is unsuccessful.
    We find that Davis's sentence was properly enhanced under USSG
    § 2D1.1(b)(1), comment. (n.3), which adds two levels if a firearm was
    present unless its connection to the offense is clearly improbable.
    While Davis asserted that he did not know the pistol was in the car,
    the district court found that Pinnix possessed the firearm in further-
    ance of the conspiracy and that it was reasonably foreseeable to Davis
    that Pinnix would possess a firearm to protect the large amount of
    cash he had in the car on the way to the motel and the large amount
    of crack he intended to obtain there. USSG § 1B1.3(a)(1)(B). The
    court's finding was not clearly erroneous. See United States v. White,
    
    875 F.2d 427
    , 433 (4th Cir. 1989).2
    _________________________________________________________________
    2 The Supreme Court's decision in Bailey v. United States, ___ U.S.
    ___, 
    64 U.S.L.W. 4039
     (U.S. Dec. 6, 1995) (No. 94-7448/7492), does
    not change this result. See United States v. Castillo, 
    77 F.3d 1480
    , 1499
    n.34 (5th Cir. 1996).
    3
    Davis's arguments with regard to the constitutionality of the penal-
    ties for crack offenses are meritless in light of our prior decisions.
    United States v. Thomas, 
    900 F.2d 37
    , 39-40 (4th Cir. 1990); United
    States v. Johnson, 
    54 F.3d 1150
    , 1163 (4th Cir. 1995); United States
    v. Fisher, 
    58 F.3d 96
    , 99 (4th Cir.), cert. denied, ___ U.S. ___, 
    64 U.S.L.W. 3270
     (U.S. Oct. 10, 1995) (No. 95-5923). The district
    court's decision against a departure in Pinnix's case is not reviewable
    on appeal. United States v. Bayerle, 
    898 F.2d 28
    , 31 (4th Cir.), cert.
    denied, 
    498 U.S. 819
     (1990).
    We therefore affirm the sentence imposed on Davis. We dismiss
    the appeal of Pinnix. 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.
    No. 95-5602 - AFFIRMED
    No. 95-5613 - DISMISSED
    4