United States v. Lambert ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4496
GREG LAMBERT,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4562
STEVE LAMBERT,
Defendant-Appellant.

Appeals from the United States District Court
for the Southern District of West Virginia, at Bluefield.
David A. Faber, Chief District Judge.
(CR-01-237)
Submitted: February 27, 2003
Decided: March 13, 2003
Before NIEMEYER and LUTTIG, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed in part and dismissed in part by unpublished per curiam
opinion.
2 UNITED STATES v. LAMBERT
COUNSEL
Michael F. Gibson, GIBSON, LEFLER & ASSOCIATES, Princeton,
West Virginia; Stanley Selden, SELDEN LAW OFFICES, Beckley,
West Virginia, for Appellants. Kasey Warner, United States Attorney,
Steven R. Compton, Special Assistant United States Attorney,
Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Steve Lambert pled guilty to conspiracy to distribute oxycodone,
21 U.S.C. § 846 (2000), and was sentenced to a term of seventy-eight
months imprisonment. His son, Greg Lambert, pled guilty to one
count of distributing oxycodone in violation of 21 U.S.C. § 841(2000), and was sentenced to a term of 108 months imprisonment.
Both appeal their sentences. We affirm in part and dismiss in part.
During the period of the conspiracy, Greg lived with his parents.
Greg’s conviction was based on a monitored sale to a confidential
informant, which took place at this residence. The residence was
searched early on November 6, 2001, by federal and state investiga-
tors, who found ten firearms (three loaded) and a digital scale in a
locked cabinet in the master bedroom, as well as a loaded handgun
under the mattress in the master bedroom, and another loaded hand-
gun in the living room on the mantel above the couch where Greg had
been sleeping. Co-conspirators and drug customers of the Lamberts
informed the government that both Greg and Steve sold drugs from
their residence and guns were always in the house when drug transac-
tions took place. In his interview with the probation officer, Greg
stated that his father always carried a gun. Greg was initially released
on bond pending trial, but his bond was revoked for continued drug
use.
UNITED STATES v. LAMBERT 3
Steve disputes the weapon enhancement he received under U.S.
Sentencing Guidelines Manual § 2D1.1(b)(1) (2001). Because he
failed to raise the issue in the district court, it is reviewed for plain
error. United States v. Olano, 507 U.S. 725, 732-37 (1993) (unpre-
served 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 fairness, integrity, or public reputation of judicial
proceedings); United States v. McAllister, 272 F.3d 228, 230 (4th Cir.
2001).
If firearms are present in a place where a drug conspiracy is carried
out, the enhancement should be applied unless it is clearly improbable
that the guns are connected to the offense. USSG § 2D1.1, comment.
(n.3); United States v. Harris, 128 F.3d 850, 852 (4th Cir. 1997). The
district court had before it undisputed evidence that Steve kept loaded
handguns in his bedroom and living room, as well as Greg’s statement
that his father always carried a gun. This information was sufficient
for the court to infer that it was not clearly improbable that the fire-
arms were connected to the drug offense. No plain error occurred.
Steve also claims that the district court erred in finding that he did
not qualify for the safety valve reduction pursuant to USSG
§ 2D1.1(b)(6) and USSG § 5C1.2. A defendant must meet five criteria
to qualify for the safety valve reduction, one of which is that he did
not possess a firearm or other dangerous weapon in connection with
the offense. USSG § 5C1.2(a)(2). Given that the district court prop-
erly determined that Steve possessed a firearm in connection with the
offense, Steve could not meet the second criterion in § 5C1.2. There-
fore, the district court correctly refused to apply the safety valve
reduction.
Greg argues first that he was entitled to an adjustment for accep-
tance of responsibility. The district court’s decision to deny an adjust-
ment for acceptance of responsibility is reviewed for clear error.
United States v. Ruhe, 191 F.3d 376, 379 (4th Cir. 1999). One of the
factors the district court should consider is whether the defendant has
voluntarily terminated or withdrawn from criminal conduct or associ-
ations. USSG § 3E1.1, comment. (n.1(b)). A district court may deny
the adjustment because of criminal conduct, including drug use, while
4 UNITED STATES v. LAMBERT
on pretrial release. United States v. Kidd, 12 F.3d 30, 34 (4th Cir.
1993).
Greg concedes that his continued drug use weighed against the
adjustment, but argues that other factors weighed more heavily in
favor of granting it. These factors were his timely guilty plea and sub-
sequent cooperation,* as well as his mental retardation and psycho-
logical problems that contribute to his drug dependence. These factors
were brought to the district court’s attention at sentencing. We con-
clude that the district court did not clearly err in finding that Greg’s
continued drug use while on release indicated that he had not fully
accepted responsibility for his criminal conduct.
Next, Greg contends that his offense level should have been
reduced because he was a minor participant. A minor participant is
one who is less culpable than most other participants. USSG § 3B1.2,
comment. (n.5). The district court’s determination concerning the
defendant’s role in the offense is a factual issue reviewed for clear
error. United States v. Perkins, 108 F.3d 512, 518 (4th Cir. 1997).
In a drug conspiracy, a defendant who sells the drugs is not a minor
participant. United States v. Brooks, 957 F.2d 1138, 1149 (4th Cir.
1992). Greg pled guilty to distributing oxycodone. His conviction
thus established that Greg had more than a minor role in the conspir-
acy. The district court did not clearly err in so finding.
Greg argues that the weapon enhancement should not have been
applied in his case because he did not have access to most of the guns
in the home, which were in a locked cabinet, and because the govern-
ment failed to prove that the guns were connected with the illegal
drug dealing. In addition, he asserts that the enhancement should not
apply to him because of his mental deficiencies. As discussed above,
the enhancement is properly made if firearms are present in a place
where a drug conspiracy is carried out. Harris, 128 F.3d at 852.
Moreover, there was evidence before the court that Greg understood
*Defense counsel acknowledged at sentencing that Greg had initially
attempted to conceal or deny the extent of his and his family members’
involvement in the drug conspiracy.
UNITED STATES v. LAMBERT 5
the wrongfulness of his actions. We conclude that the district court
did not clearly err in making the enhancement in Greg’s case.
Finally, Greg contends that a downward departure was warranted
for a variety of reasons: his diminished capacity, his alleged minor
role in the offense, his inability to function effectively in daily life,
and his susceptibility to the influence of family members. Greg does
not argue, and the record does not indicate, that the district court
failed to understand its authority to depart. Therefore, the court’s
decision to forego a departure is not reviewable, United States v.
Carr, 271 F.3d 172, 176-77 (4th Cir. 2001), and we dismiss this por-
tion of the appeal.
We accordingly affirm the sentences but dismiss that portion of
Greg’s appeal that challenges the district court’s decision not to
depart. 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 IN PART, DISMISSED IN PART