United States v. Brown , 80 F. App'x 895 ( 2003 )

Decision Vacated by Order of March 25, 2004
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 03-4494
JAMES BROWN, a/k/a 6-9,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
Charles H. Haden II, District Judge.
(CR-02-189)
Submitted: November 6, 2003
Decided: November 19, 2003
Before WIDENER, MICHAEL, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Barron M. Helgoe, VICTOR VICTOR & HELGOE, L.L.P., Charles-
ton, West Virginia, for Appellant. Kasey Warner, United States Attor-
ney, Ronald G. Morgan, Assistant United States Attorney, Charleston,
West Virginia.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. BROWN
OPINION
PER CURIAM:
James Brown pled guilty to one count of possession with intent to
distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1) (2000),
and one count of simple assault on a federal officer, in violation of
18 U.S.C. § 111(a)(1) (2000). He appeals his sentence. Finding no
reversible error, we affirm.
On appeal, Brown contends that the district court erred in including
in the quantity of drugs attributed to him drugs mentioned in non-
immunized, post arrest statements that he made to state law enforce-
ment officers prior to the date of filing of the federal charges of which
he was convicted. He argues that U. S. Sentencing Guidelines Manual
§ 1B1.8 (2003) mandates that the drug quantities he disclosed to the
state law enforcement officers should have been excluded from his
relevant conduct because his disclosures were made pursuant to a plea
agreement. We review factual findings made by the district court for
clear error, while legal interpretations of the Guidelines are reviewed
de novo. See United States v. Blake, 81 F.3d 498, 503 (4th Cir. 1996);
United States v. Daughtrey, 874 F.2d 213, 217 (4th Cir. 1989).
Our review of the record leads us to conclude that the district court
did not err in concluding that the drugs disclosed by Brown in his
post-arrests statements was properly attributable to Brown. Applica-
tion of § 1B1.8 requires that two separate steps be satisfied to form
a binding agreement. First, a defendant must agree to cooperate by
providing information on the unlawful activities of others to the Gov-
ernment. Second, the Government must agree that self-incriminating
evidence will not be used against the defendant. See U.S.S.G.
§ 1B1.8. Because the district court did not clearly err in finding that
Brown received no promise that the drugs at issue would be excluded
from consideration, and because the United States was not bound by
the state officers’ representations, in any event, we conclude that
U.S.S.G. § 1B1.8 is inapplicable to this case. See United States v.
Hall, 984 F.2d 387, 390 (10th Cir. 1993).
Accordingly, we affirm Brown’s conviction and sentence. We dis-
pense with oral argument because the facts and legal contentions are
UNITED STATES v. BROWN 3
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED