United States v. Henry ( 2000 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 99-4028
SHAWN HENRY,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 99-4435
ROLAND HUGHES MALONE, JR., a/k/a
Renie,
Defendant-Appellant.

Appeals from the United States District Court
for the Western District of Virginia, at Roanoke.
James C. Turk, District Judge.
(CR-97-118)
Submitted: July 31, 2000
Decided: October 18, 2000
Before MURNAGHAN,* MICHAEL, and KING, Circuit Judges.
*Judge Murnaghan was assigned to the panel in this case but died prior
to the time the decision was filed. The decision is filed by a quorum of
the panel pursuant to 28 U.S.C. § 46(d) (1994).
2 UNITED STATES v. HENRY
No. 99-4028 affirmed and No. 99-4435 dismissed by unpublished per
curiam opinion.
COUNSEL
Clayman R. Norfleet, DANIEL L. CRANDALL & ASSOCIATES,
P.C., Roanoke, Virginia; Wayne D. Inge, Roanoke, Virginia, for
Appellants. Robert P. Crouch, Jr., United States Attorney, Donald
Ray Wolthuis, Assistant United States Attorney, Karie D. Davis,
Third-Year Law Student, Roanoke, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Shawn Henry pled guilty to participating in a conspiracy to distrib-
ute and possess with intent to distribute heroin, see 21 U.S.C. § 846(1994), and being a felon in possession of a firearm, see 18 U.S.C.A.
§ 922(g)(1) (West 2000). Roland Hughes Malone pled guilty to par-
ticipating in the conspiracy and to six counts of heroin distribution.
See 21 U.S.C.A. § 841(a) (West 1999). Henry received a sentence of
150 months imprisonment and six years supervised release. Malone
was sentenced to a term of 108 months imprisonment and five years
supervised release. Both Henry and Malone appeal their sentences.
Henry alleges that the district court clearly erred in determining the
amount of heroin attributed to him, his role as a leader in the offense,
and his criminal history. See U.S. Sentencing Guidelines Manual
§§ 2D1.1, 3B1.1(a), 4A1.1 (1998). Malone challenges the extent of
the district court’s departure for substantial assistance. See USSG
UNITED STATES v. HENRY 3
§ 5K1.1. We affirm Henry’s sentence and dismiss Malone’s appeal
for lack of jurisdiction.1
Henry contests the amount of heroin attributed to him on two
grounds. Henry stipulated that he was responsible for between 100
grams and 1.1 kilograms of heroin, but argued unsuccessfully at sen-
tencing that he should be held accountable for no more than 400
grams of heroin. We find first that the district court did not clearly err
in finding that Henry was responsible for at least one kilogram of her-
oin because there was reliable evidence before the court that estab-
lished that he personally distributed that amount. See United States v.
Fletcher, 74 F.3d 49, 55 (4th Cir. 1996) (clearly erroneous standard
of review for factual issues).
Henry also contends that the district court improperly considered
information provided by his co-defendants because it was obtained as
a result of information he himself provided which, under the terms of
his plea agreement, could not be used to enhance his sentence. Self-
incriminating information provided pursuant to a cooperation agree-
ment generally may not be used to determine the defendant’s guide-
line range. See USSG § 1B1.3(a);2 see also United States v. Baird,
218 F.3d 221, 231 (3d Cir. 2000) (government may not evade
§ 1B1.8(a) where information obtained as a result of or prompted by
defendant’s cooperation); United States v. Gibson, 48 F.3d 876, 879
(5th Cir. 1995) (no breach where defendant did not provide drug
quantity information in first interview and subsequently corroborated
information obtained from codefendants).
As the party alleging a breach of the plea agreement, Henry had the
burden of proving that the government had breached the agreement.
See United States v. Conner, 930 F.2d 1073, 1076 (4th Cir. 1991).
However, having raised the issue, Henry failed at sentencing to pro-
duce any evidence that information was obtained from other conspira-
1
We have considered the effect of Apprendi v. New Jersey, 120 S. Ct.
2348 (2000), and find that, because the defendants’ sentences did not
exceed the statutory maximums set out in 21 U.S.C.A. § 841(b)(1)(C)
(West 1999), no plain error occurred. See United States v. Aguayo-
Delgado, 220 F.3d 926, 933 (8th Cir. 2000).
2
Certain exceptions set out in § 1B1.8(b) are not pertinent here.
4 UNITED STATES v. HENRY
tors through the use of information he had provided. Although the
district court called the probation officer as a witness specifically so
that the issue could be explored, Henry’s attorney did not elicit any
testimony concerning the use of his information, and did not call any
other witnesses to testify about the debriefing of other conspirators.
Because Henry did not prove that the government improperly used his
protected information, we find that the district court did not err in
considering information obtained from his co-defendants.
Next, Henry argues that, as a supplier, he did not have a position
of leadership in the conspiracy. See USSG § 3B1.1(a). We disagree.
A defendant’s position as a major supplier of drugs for the charged
conspiracy is relevant to whether he was a leader or organizer. See
United States v. Banks, 10 F.3d 1044, 1057 (4th Cir. 1993). Henry
supplied the distributors in Roanoke with a significant amount of her-
oin in 1995 and again in 1997. During the latter period, Henry was
one of two main suppliers of heroin in Roanoke. Therefore, the dis-
trict court’s determination that Henry was a leader was not clearly
erroneous.
Henry also asserts that the district court improperly awarded two
criminal history points for an offense committed while on parole, see
USSG § 4A1.1(d), and another point for an offense committed within
two years of his release from custody on a prior sentence, see USSG
§ 4A1.1(e). Henry was paroled in 1993 from a New Jersey drug sen-
tence and discharged from parole in May 1995. The charged conspir-
acy began in early 1995. The presentence report contained
information from a co-conspirator that Henry was supplying heroin in
Roanoke in late 1994 or early 1995. Henry argued at sentencing that
the information was mere rumor. However, he provided no substantial
evidence to rebut it, as was his burden. See United States v. Terry,
916 F.2d 157, 162 (4th Cir. 1990) (unless defendant shows that fac-
tual information in presentence report is inaccurate or unreliable dis-
trict court may adopt findings in presentence report without further
inquiry or explanation). Consequently, the district court did not err in
accepting the probation officer’s conclusion that Henry entered the
conspiracy before June 1995, when he was discharged from parole.
Both the two criminal history points under § 4A1.1(d) and the addi-
tional point under § 4A1.1(e) were thus properly awarded.
UNITED STATES v. HENRY 5
Last, Henry contests one criminal history point he received for a
juvenile disposition in which he was placed in the custody of his
mother in 1991. The guidelines distinguish between convictions for
which a prison sentence is imposed and those for which other forms
of punishment are ordered. Two criminal history points are assigned
for each adult or juvenile sentence to confinement of at least sixty
days, see USSG § 4A1.2(d)(2)(A), while one criminal history point is
assigned for other adult or juvenile sentences imposed within five
years of the instant offense. See USSG § 4A1.2(d)(2)(B). However,
a diversionary disposition from juvenile court is not counted. See
USSG § 4A1.2(f). The Sentencing Guidelines do not define the term
"diversionary disposition." The general concept of a diversion is a
criminal disposition without a conviction. The disposition is normally
conditioned on the performance of certain obligations or the participa-
tion in counseling programs. If the defendant does not meet these
obligations, he is subject to prosecution on the original charges. See
4 Wayne R. LaFave et al., Criminal Procedure § 13.1(d), at 8 (2d ed.
1999). In this case, the only information in the record about Henry’s
juvenile disposition is located in the presentence report. It indicates
that Henry was found guilty of possession of crack cocaine and
placed into the custody of his mother. Virginia law does not specify
whether such a disposition is considered diversionary, see Va. Code
Ann. § 16.1-278.8 (Michie Supp. 2000), and we cannot determine
based on the information in the record whether the disposition here
was diversionary. Normally, a remand to the district court would be
necessary in order to answer this question through a development of
the record. See United States v. DiPina, 178 F.3d 68, 78 (1st Cir.
1999). In this case, though, even if the district court was in error, the
same sentencing range would have applied to Henry. He would have
received eight criminal history points instead of nine, which would
have left him in the same criminal history category of IV. With an
offense level of 33, Henry would have been subject to the same 188-
to 235-month period of incarceration. See USSG ch. 5, pt. A (Sen-
tencing Table). Therefore, any error that the district court might have
committed was harmless, and a remand is not necessary. See United
States v. Sanders, 41 F.3d 480, 486-87 (9th Cir. 1994) (district court’s
mistake in computing criminal history points was harmless error
because defendant remained in the same criminal history category).
Malone argues that the district court should have departed further
in his case. Because the sentence was not imposed in violation of law
6 UNITED STATES v. HENRY
and was not the result of an incorrect application of the guidelines, we
lack jurisdiction under 18 U.S.C. § 3742(a) (1994) to review the
extent of a downward departure. See United States v. Hill, 70 F.3d
321, 324 (4th Cir. 1995). We are thus constrained to dismiss Malone’s
appeal.
Accordingly, we affirm Henry’s sentence and dismiss Malone’s
appeal. We dispense 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.
No. 99-4028 - AFFIRMED
No. 99-4435 - DISMISSED