United States v. Smith ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4291
GENE AUTREY SMITH, JR.,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4343
PAMELA SUE HARRIS,
Defendant-Appellant.
Appeals from the United States District Court
for the Western District of Virginia, at Danville.
Jackson L. Kiser, Senior District Judge.
(CR-95-89-D)
Submitted: May 1, 1997
Decided: May 12, 1997
Before WIDENER and MURNAGHAN, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
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No. 96-4291 affirmed and No. 96-4343 affirmed in part and dismissed
in part by unpublished per curiam opinion.
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COUNSEL
Rena G. Berry, Roanoke, Virginia; Gilbert K. Davis, Fairfax, Vir-
ginia, for Appellants. Robert P. Crouch, Jr., United States Attorney,
Anthony P. Giorno, Assistant United States Attorney, Roanoke, Vir-
ginia, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Gene Autrey Smith, Jr., and Pamela Sue Harris pled guilty to con-
spiracy to possess cocaine and cocaine base ("crack") with intent to
distribute, 21 U.S.C. § 846 (1994). Smith stipulated that he was
responsible for one kilogram of cocaine and was sentenced to a term
of 60 months imprisonment. He contends on appeal that the district
court clearly erred in finding that he had not accepted responsibility,
USSG § 3E1.1,1 and that he did not qualify for a sentence under the
safety valve provision. See 18 U.S.C. § 3553(e) (1994); USSG
§ 5C1.2.
Harris also pled guilty to engaging in a continuing criminal enter-
prise, 21 U.S.C.A. § 848 (West Supp. 1997), as well as five counts
of possession of cocaine with intent to distribute, 21 U.S.C. § 841(1994), and one count of criminal forfeiture, 21 U.S.C.A. § 853 (West
Supp. 1997). After sentence was imposed, the district court denied her
motion for reconsideration. Harris seeks to appeal her 150-month sen-
tence, alleging that the district court misapplied USSG § 5K1.1 in
determining the extent of the substantial assistance departure she
received. She also appeals from the district court's order denying
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1 United States Sentencing Commission, Guidelines Manual (Nov.
1995).
2
reconsideration of her sentence. We affirm Smith's sentence, dismiss
Harris' appeal of her sentence, and affirm the district court's order
denying reconsideration.
I. Smith
Smith admitted, in a written statement to police before his arrest
and again when he entered his guilty plea, that on two occasions in
1995 he supplied Harris with a half-kilogram of cocaine. In his post-
plea interview with the probation officer, however, Smith categori-
cally denied any involvement with Harris. He maintained that
recorded telephone calls in which he and Harris discussed the price
of jewelry items did not concern drugs, but rather, Harris' efforts to
recover jewelry which had been stolen from her. At his sentencing
hearing, Smith said he had been confused when he spoke to the pro-
bation officer. He again admitted supplying Harris with cocaine, and
said she had told him to speak in code about jewelry when discussing
the cocaine transaction on the telephone. He also testified that he did
not know Harris and did not know why she approached him for drugs.
Harris testified at the hearing that she met Smith in 1993 through
Mike Griffin and Marcus Hall, two co-defendants, and that she
bought cocaine from him on three occasions when she could not get
it from her usual source. She confirmed that their recorded conversa-
tions about jewelry were intended to conceal the drug trafficking.
The district court found that Smith had not been truthful with the
probation officer and had not been entirely truthful during the sen-
tencing hearing. Consequently, the court denied him a reduction for
acceptance of responsibility and also found that he had not fulfilled
the fifth requirement for a sentence below the statutory minimum pur-
suant to the safety valve provision: that by the time of sentencing the
defendant truthfully provide "to the government all information and
evidence [he] has concerning the offense or offenses that were part of
the same course of conduct or common scheme or plan." 18 U.S.C.
§ 3553(f)(5); USSG § 5C1.2(5).
Under USSG § 3E1.1, a defendant may receive a two- or three-
level reduction if he demonstrates by a preponderance of the evidence
that he has accepted responsibility for his offense. A principal factor
to be considered is the defendant's truthful admission of the conduct
3
comprising the offense. USSG § 3E1.1, comment. (n.1(a)). We
review the district court's factual determination as to whether the
defendant has accepted responsibility under the clearly erroneous
standard. United States v. Nale, 101 F.3d 1000, 1004 (4th Cir. 1996).
Smith asserts that he demonstrated his acceptance of responsibility
by giving a statement describing his criminal conduct to police, sur-
rendering voluntarily to authorities, and pleading guilty. He contends
that his lie to the probation officer was not enough to deprive him of
the adjustment. While a guilty plea is significant evidence of accep-
tance of responsibility, it is not determinative and may be outweighed
by conduct inconsistent with acceptance of responsibility. USSG
§ 3E1.1, comment. (n.3); Nale, 101 F.3d at 1005. Because of Smith's
lie to the probation officer and his attempt to minimize his involve-
ment at sentencing, we cannot say that the district court clearly erred
in denying him the adjustment.
We find no merit either in Smith's claim that he was improperly
denied a sentence under the safety valve provision. 2 A defendant has
the burden of proving that he has met the prerequisites and, with
regard to the last requirement, must make an affirmative effort to dis-
close fully all the information in his possession. United States v.
Ivester, 75 F.3d 182, 184-85 (4th Cir.), cert. denied, ___ U.S. ___, 64
U.S.L.W. 3837 (U.S. June 17, 1996) (No. 95-8998). Smith's about-
face following his guilty plea prevented him from meeting the neces-
sary criteria for a sentence below the statutory minimum.
II. Harris
Harris was subject to a statutory minimum sentence of 240 months.
Her guideline range was 168-210 months. Because she provided sub-
stantial assistance in the investigation and prosecution of several co-
defendants, the district court departed downward on the government's
motion and imposed a sentence of 150 months. Harris contends on
appeal that the district court improperly applied the guideline by lim-
iting her departure to give her a longer sentence than co-defendant
Joseph Scott Higgins, thus penalizing her for Higgins' failure to coop-
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2 Smith's guideline range was 51-63 months. The statutory minimum
sentence was 60 months.
4
erate. An appeals court lacks jurisdiction to review the sentencing
court's decision concerning the extent of a departure in the defen-
dant's favor unless the resulting sentence is imposed in violation of
law or the guidelines have been incorrectly applied. United States v.
Hill, 70 F.3d 321, 324-25 (4th Cir. 1995). Here, Harris' claim is factu-
ally unsupported because the district court explicitly stated that Har-
ris' sentence was not influenced in any way by the sentence Higgins
received. Moreover, the court may consider factors apart from the
defendant's assistance in determining the extent of a substantial assis-
tance departure. Id. We discern no basis for review of the district
court's decision.
Harris moved for reconsideration of her sentence in the district
court, asking the court to "take another look" at the quality of her
assistance. A hearing was held and the motion was denied on the mer-
its. We affirm the court's order denying reconsideration, but note that
the court lacked authority to alter the sentence on the ground urged
by Harris. See Fed. R. Crim. P. 35; United States v. Fraley, 988 F.2d
4, 6-7 (4th Cir. 1993).
We therefore affirm Smith's sentence and dismiss Harris' appeal of
her sentence. We affirm the district court's order denying reconsidera-
tion of Harris' 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.
No. 96-4291 - AFFIRMED
No. 96-4343 - AFFIRMED IN PART AND
DISMISSED IN PART
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