United States v. Terrance Paletta ( 2000 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4780
TERRANCE PALETTA,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of West Virginia, at Clarksburg.
Irene M. Keeley, District Judge.
(CR-98-38)
Submitted: June 30, 2000
Decided: July 13, 2000
Before MURNAGHAN and TRAXLER, Circuit Judges,
and HAMILTON, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Brough A. Jones, MCNEER, HIGHLAND, MCMUNN & VARNER,
L.C., Clarksburg, West Virginia, for Appellant. Melvin W. Kahle, Jr.,
United States Attorney, Robert H. McWilliams, Jr., Assistant United
States Attorney, Wheeling, West Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Terrance Paletta was convicted pursuant to his guilty plea of dis-
tributing cocaine and aiding and abetting in the same. On appeal,
Paletta alleges that the district court clearly erred by enhancing his
base offense level for obstruction of justice1 and by not granting him
a downward adjustment for acceptance of responsibility.2 Paletta also
alleges that the Government breached the terms of the plea agreement
by arguing against the adjustment for acceptance of responsibility.
Finding no reversible error, we affirm.
The basic facts of this case are relatively straightforward. Paletta
was part of a small drug conspiracy that distributed cocaine in and
around Clarksburg, West Virginia. Local police were able to make
several controlled buys using a confidential informant, and Paletta
and his co-conspirators were arrested.
We review the district court's finding that Paletta obstructed justice
for clear error and find none. See United States v. Puckett, 61 F.3d
1092, 1095 (4th Cir. 1995). The record shows that Paletta and his
fiancee went to a restaurant buffet shortly after his arraignment.
While waiting for their steaks, Paletta noticed that one of the cooks
("Davidson") was an individual with whom he had done drugs and
who was listed as a potential witness in his case. Davidson's girl-
friend ("Campbell") was also listed as a witness. Paletta confronted
Davidson about he and Campbell being witnesses, but Davidson
denied any involvement in Paletta's case. Davidson testified at Palet-
ta's bond revocation hearing3 that Paletta told him that if Campbell
knew what was good for her, she would not testify.
_________________________________________________________________
1 U.S. Sentencing Guidelines Manual § 3C1.1 (1998).
2 USSG § 3E1.1.
3 Paletta was released on bond following his arraignment. The bond
was revoked following a hearing based on Paletta's contact with David-
son. The district court considered both the testimony at sentencing and
the record of the bond revocation hearing in making its decision.
2
We find that Paletta's threat against Campbell supports the district
court's decision. Although Paletta denied making any such threat, the
court found that his version of the events was not credible. This find-
ing is not subject to appellate review. See United States v. Wilson, 118
F.3d 228, 234 (4th Cir. 1997). We also reject Paletta's assertion that,
even assuming he made a threat against Campbell, it was unlikely that
she would ever learn of it.4 Davidson testified that he called Campbell
and told her about the threat.
Because the enhancement for obstruction of justice was appropri-
ate, a downward adjustment for acceptance of responsibility would
only be justified in exceptional circumstances. 5 We find no such cir-
cumstances here. As a result, the district court properly declined to
reduce Paletta's base offense level.
Finally, we review Paletta's claim that the Government breached
the plea agreement for plain error and find none. 6 See United States
v. McQueen, 108 F.3d 64, 66 (4th Cir. 1997). The plea agreement
here clearly stated that the Government would only support an adjust-
ment for acceptance of responsibility if Paletta in fact accepted
responsibility. Because Paletta's obstructive conduct was inconsistent
with such a finding, the Government was not required to make what
would have been a frivolous argument. While Paletta is correct in his
assertion that the Government was aware of his encounter with
Davidson prior to entering into the plea agreement, the record shows
that it was not aware that Paletta would continue to deny that he made
any threats.7
Accordingly, we affirm Paletta's sentence. We dispense with oral
argument because the facts and legal contentions are adequately pre-
_________________________________________________________________
4 See generally United States v. Brooks, 957 F.2d 1138, 1150 (4th Cir.
1992) (threats made to a third party must be made in such a way that it
is likely that the witness will learn of the threat).
5 See USSG § 3E1.1, comment. (n.4).
6 Paletta failed to raise this issue before the district court.
7 The Government stated at sentencing that it would have supported the
adjustment absent Paletta's denials.
3
sented in the materials before the court and argument would not aid
the decisional process.
AFFIRMED
4