United States v. Jamerson ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4861
THOMAS KENT JAMERSON,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Virginia, at Lynchburg.
James C. Turk, District Judge.
(CR-96-70063)
Submitted: April 28, 1998
Decided: June 18, 1998
Before WILKINS and MICHAEL, Circuit Judges, and HALL,
Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
James G. Hunter, III, O'KEEFFE & SPIES, Lynchburg, Virginia, for
Appellant. Robert P. Crouch, Jr., United States Attorney, Anthony P.
Giorno, Assistant United States Attorney, Roanoke, Virginia, 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Unpublished opinions are not binding precedent in this circuit.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:
Appellant Thomas Kent Jamerson was convicted pursuant to his
guilty plea of conspiracy to distribute cocaine and cocaine base. On
appeal he alleges that the district court erred in its determination of
the amount of drugs attributable to him and for increasing his base
offense level for possession of a firearm pursuant to USSG § 2D1.1.1
Finding no error, we affirm.
Jamerson was part of a loose-knit conspiracy which distributed
drugs in Central Virginia, and he purchased cocaine for both personal
use and resale. Two of Jamerson's co-conspirators ("Gallier" and
"Powell") provided statements concerning the amount of cocaine pur-
chased by Jamerson and stated that Jamerson always carried a firearm
during drug transactions.2
We review the district court's factual determination concerning the
amount of drugs attributable to Jamerson for clear error and find
none. See United States v. Lamarr, 75 F.3d 964, 972 (4th Cir.), cert.
denied, ___ U.S. ___, 65 U.S.L.W. 3309 (U.S. Oct. 21, 1996) (No.
95-9398); United States v. D'Anjou, 16 F.3d 604, 614 (4th Cir. 1994).
Jamerson bears the burden of proving that the information in the pre-
sentence report is incorrect, and mere objections are insufficient. See
United States v. Terry, 916 F.2d 157, 162 (4th Cir. 1990). We find
that Jamerson fails to meet this burden. The sole basis for Jamerson's
objection on this issue is his belief that Powell was not a reliable wit-
ness because she was a heavy drug user. He asserts, therefore, that he
should not be held accountable for any amounts identified by Powell.
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1 U.S. Sentencing Guidelines Manual (1997).
2 The investigating FBI agent also testified that Jamerson carried a fire-
arm during drug transactions.
2
Credibility issues, however, are decided by the fact finder, and the
district court resolved this issue against Jamerson. 3
We review the district court's factual findings concerning the
§ 2D1.1 enhancement for clear error and find none here.4 A two-level
increase in Jamerson's base offense level for possession of a firearm
was appropriate unless it was "clearly improbable" that the weapon
was connected with the offense.5 In the present case, two co-
conspirators and the investigating agent stated that Jamerson carried
a firearm during drug transactions. Since Jamerson fails to provide
any evidence to refute these statements, we find that the district
court's decision was not clearly erroneous.
We therefore affirm Jamerson's conviction and sentence. We dis-
pense 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
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3 We note that Jamerson provided no direct evidence refuting Powell's
statements.
4 See United States v. Urrego-Linares, 879 F.2d 1234, 1237-38 (4th
Cir. 1989).
5 See USSG § 2D1.1, comment. (n.3).
3