United States v. Camp ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4769
WILLIE CAMP, JR.,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Florence.
Cameron McGowan Currie, District Judge.
(CR-97-148)
Submitted: April 21, 1998
Decided: May 8, 1998
Before MURNAGHAN, ERVIN, and WILLIAMS, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Timothy E. Meacham, JEBAILY & GLASS, P.A., Florence, South
Carolina, for Appellant. William Earl Day, II, Assistant United States
Attorney, Florence, South Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Willie Camp, Jr., pleaded guilty to conspiracy to distribute crack
cocaine, in violation of 21 U.S.C. § 846 (1994). The court sentenced
Camp to 324 months imprisonment followed by five years of super-
vised release and a special assessment fee of $100. Camp appeals his
sentence. Camp's counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), raising four possible issues for
review. Camp was informed of his right to file a pro se supplemental
brief, which he has failed to file.
Camp's counsel first asserts that the Government failed to prove by
a preponderance of the evidence the alleged amounts of drugs attrib-
utable to Camp. At the sentencing hearing, Camp admitted to selling
seventeen ounces of powder cocaine and twelve ounces of crack
cocaine, but objected to the pre-sentence report that held him respon-
sible for more than two kilograms of crack cocaine. In response, the
Government called several witnesses who testified to the amount of
drugs they either sold to Camp or purchased from Camp. Based on
their testimony, the district court determined that Camp was responsi-
ble for over 1.5 kilograms of crack cocaine. Camp fails to establish
that the district court erred in its finding of fact based on the testi-
mony at the sentencing hearing. See United States v. Fletcher, 74 F.3d
49, 55 (4th Cir. 1996). Therefore, this issue is meritless.
Camp's counsel next asserts that the district court erred by denying
a reduction in sentence for acceptance of responsibility and failing to
review the Government's refusal to move for a reduction in sentence
based on substantial assistance. A sentencing court's determination of
whether a reduction should be given is entitled to great deference and
is reviewed for clear error. See 18 U.S.C.§ 3742 (West Supp. 1997);
United States v. Cusack, 901 F.2d 29, 31 (4th Cir. 1990). Camp's
counsel asserts that Camp's entry of a guilty plea and acceptance of
responsibility for his conduct is sufficient evidence to warrant a
downward departure. However, a guilty plea does not automatically
entitle a defendant to such relief. See Cusack , 901 F.2d at 32. In mak-
ing its determination not to grant a downward departure, the court
determined that although Camp admitted to some drug transactions,
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he denied the scope of all the drug transactions and gave inconsistent
testimony as to the transactions. Camp therefore fails to establish that
the court clearly erred in denying a downward departure for accep-
tance of responsibility.
Also, a district court may not grant a request for departure based
on substantial assistance absent a motion from the government. See
United States v. Dorsey, 61 F.3d 260, 262 (4th Cir. 1995). The Gov-
ernment declined to make a motion for downward departure based on
substantial assistance because it did not feel Camp fully cooperated.
The Government asserted that Camp had been deceptive when ques-
tioned about individuals with whom he had been dealing drugs and
that he failed a polygraph test that was required under the plea agree-
ment.
Finally, Camp's counsel asserts that the district court improperly
allowed evidence of a polygraph test and improperly relied on the
results of the polygraph test to allow the Government to refuse to
move for a downward departure. In determining facts relevant to sen-
tencing, courts are not limited to consideration of evidence which
would be admissible at trial. See 18 U.S.C.§ 3661 (1994). A sentenc-
ing court may consider any information concerning the defendant's
background, character, and conduct. See id. Thus, this claim is with-
out merit.
In accordance with the requirements of Anders , we have examined
the entire record in this case and find no meritorious issues for appeal.
This court requires that counsel inform his client, in writing, of his
right to petition the Supreme Court of the United States for further
review. If the client requests that a petition be filed, but counsel
believes that such a petition would be frivolous, then counsel may
move in this court for leave to withdraw from representation. Coun-
sel's motion must state that a copy thereof was served on the client.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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