United States v. Fragale

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4681
DANIEL FRAGALE,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of West Virginia, at Beckley.
Charles H. Haden II, Chief District Judge.
(CR-98-88)
Submitted: September 30, 1999
Decided: October 8, 1999
Before NIEMEYER, WILLIAMS, and MICHAEL, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Joseph C. Cometti, Charleston, West Virginia, for Appellant. Rebecca
A. Betts, United States Attorney, John J. Frail, Assistant United States
Attorney, Charleston, West 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Unpublished opinions are not binding precedent in this circuit.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:
Daniel Fragale pled guilty to conspiracy to possess methamphet-
amine, see 21 U.S.C. § 846 (1994), and was sentenced to seventy
months imprisonment. Fragale contends on appeal that the district
court clearly erred in finding that two ounces of methamphetamine
possessed by a co-conspirator when she was arrested were attributable
to him as relevant conduct. See U.S. Sentencing Guidelines Manual
§§ 1B1.3, 2D1.1 (1997). We affirm.
Fragale was arrested after a search warrant was executed at his
home while he, a confidential informant, and several other people
were waiting for co-conspirator Kim Humphreys to arrive with two
ounces of methamphetamine. Humphreys had 100 grams, nearly four
ounces of methamphetamine, when she was arrested. At sentencing,
Fragale argued that the district court should disregard the additional
two ounces of methamphetamine because it would not have been
recovered by law enforcement authorities had he not cooperated
immediately after his arrest, and instructed Humphreys to come to his
house. On appeal, he argues that the additional two ounces should not
have been treated as relevant conduct because the government failed
to prove that it was within his agreement with Humphreys. Because
this argument was not made below, we review the district court's
determination of the drug amount for plain error. See United States
v. Olano, 507 U.S. 725, 731-32 (1993).
Fragale does not contest the other amounts of methamphetamine,
cocaine, and marijuana for which he was held responsible. If the two
ounces of methamphetamine in question were subtracted, more than
100 kilograms of marijuana equivalent would remain, and his base
offense level would not change. Consequently, we find that the dis-
trict court did not plainly err in determining the amount of drug for
which Fragale was responsible.
We therefore affirm the sentence. 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.
AFFIRMED
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