United States v. Robert Bonner ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4475
ROBERT LEE BONNER,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
William L. Osteen, Sr., District Judge.
(CR-94-109)
Submitted: March 9, 1999
Decided: April 6, 1999
Before WIDENER, LUTTIG, and MICHAEL, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Robert Edmunds, STERN & KLEPFER. L.L.P., Greensboro, North
Carolina; Walter L. Jones, CLIFFORD, CLENDENIN, O'HALE &
JONES, L.L.P., Greensboro, North Carolina, for Appellant. Walter C.
Holton, Jr., United States Attorney, Michael F. Joseph, Assistant
United States Attorney, Greensboro, North Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Robert Lee Bonner pled guilty to possession of crack cocaine with
intent to distribute, see 21 U.S.C. § 841(a) (1994), and received a sen-
tence of 142 months imprisonment. He appeals his sentence, alleging
that the district court committed plain error by not reducing his sen-
tence under the safety valve provision. See 18 U.S.C.A. § 3553(f)(1)-
(5) (West Supp. 1998); U.S. Sentencing Guidelines Manual § 5C1.2
(1997). Because this issue was not raised in the district court, we
review only for plain error. See United States v. Olano, 507 U.S. 725,
732 (1993). We find no error, and affirm the sentence.
In March 1993, Bonner and three others were arrested after a confi-
dential informant bought 55.9 grams of crack. Bonner gave a state-
ment to the local police following his arrest in which he admitted
supplying the crack cocaine and serving as a lookout during the trans-
action. He pled guilty in state court to cocaine trafficking and conspir-
acy to traffic in cocaine and promised to cooperate with law
enforcement authorities. However, instead of cooperating, Bonner
absconded. He was arrested in 1997 and subsequently charged with
the instant federal offense. At his guilty plea hearing in 1998, Bonner
admitted that his true name was "Trevor Lee Richmond." At sentenc-
ing, Bonner made no objections to the presentence report and the dis-
trict court adopted the probation officer's recommendations
concerning the sentence calculation. Bonner's sentencing guideline
range was 121-151 months. He was subject to a mandatory minimum
sentence of 120 months. The court imposed a sentence of 142 months.
A defendant who qualifies for sentencing under the safety valve
provision for a drug offense receives two benefits: a two-level reduc-
tion in his offense level, see USSG § 2D1.1(b)(6), and relief from a
statutory minimum sentence. To be entitled to sentencing under the
safety valve provision, the defendant must satisfy five criteria. The
2
government does not challenge Bonner's assertion that he meets the
first four requirements. However, the fifth requirement is that the
defendant must provide "to the Government all information and evi-
dence the defendant has concerning the offense or offenses that were
part of the same course of conduct or of a common scheme or plan
. . . ." 18 U.S.C.A. § 3553(f)(5); USSG§ 5C1.2(5). The record does
not disclose that Bonner ever revealed anything to police or federal
investigators about the conspiracy in which he was involved beyond
the bare facts of the March 1993 sale. The government asserts that,
although Bonner was arrested a second time by local police in con-
nection with a drug sale on July 10, 1993, he provided no information
about it to authorities. This transaction was the basis for Count Two
of the federal indictment, which was dismissed pursuant to Bonner's
plea agreement.
Bonner argues that, because he was charged with a substantive
offense, not conspiracy, there is no presumption that anyone else was
involved in the offense and that he had no responsibility to give infor-
mation about the conspiracy unless such information was requested
by the government. This argument is without any basis because the
statute specifies that the defendant must provide all the information
he has about the offense and all related conduct. Moreover, the com-
mentary to USSG § 5C1.2 explains that "the offense," as used in
§ 5C1.2, means "the offense of conviction and all relevant conduct."
USSG § 5C1.2, comment. (n.3). Moreover, the defendant must take
affirmative steps to provide this information to the government even
if the government does not seek it out. See United States v. Ivester,
75 F.3d 182, 185 (4th Cir. 1996). The record reveals that Bonner did
not comply with § 3553(f)(5). Therefore, the district court did not
plainly err in failing to sentence him under the safety valve provision.
Accordingly, we affirm the sentence. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.
AFFIRMED
3