United States v. Floyd

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5667
DEBBIE FLOYD,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of West Virginia, at Wheeling.
Frederick P. Stamp, Jr., Chief District Judge.
(CR-94-10120)
Submitted: May 16, 1996
Decided: May 31, 1996
Before RUSSELL, LUTTIG, and WILLIAMS, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
John J. Pizzuti, CAMILLETTI, SACCO & PIZZUTI, L.C., Wheeling,
West Virginia, for Appellant. William D. Wilmoth, United States
Attorney, Thomas O. Mucklow, Assistant United States Attorney,
Wheeling, West Virginia, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Debbie Floyd pled guilty to one count of crack cocaine distribu-
tion, 21 U.S.C.A. § 841 (West 1981 & Supp. 1995), and was sen-
tenced to a term of 37 months imprisonment.* She appeals her
sentence on the grounds that the penalties for crack offenses are
unconstitutional and that the district court clearly erred in finding that
she was not a minor participant. United States Sentencing Commis-
sion, Guidelines Manual § 3B1.2(b) (Nov. 1994). We affirm.
On several occasions in the summer of 1991, Floyd transported
crack from New York to Clarksburg, West Virginia, where it was dis-
tributed by Peter Simpson ("Diamond"), a friend of hers who had set
up a crack operation, and others. Floyd herself sold crack to under-
cover agents four times. She also wired money to New York for
Simpson three times. A minor participant is one who is less culpable
than most other participants, but whose role is not minimal. USSG
§ 3B1.2, comment. (n.3). To earn the adjustment, the defendant must
have been substantially less culpable than the average participant. Id.,
comment. (backg'd). Here, Floyd performed three different tasks
which furthered the distribution scheme, including making several
sales of her own volition.
We have previously rejected the argument made by Floyd concern-
ing the penalties for crack offenses. United States v. Fisher, 58 F.3d
96, 99 (4th Cir.), cert. denied, ___ U.S. ___, 64 U.S.L.W. 3270 (U.S.
Oct 10, 1995) (No. 95-5923).
The sentence imposed by the district court is therefore affirmed.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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*Floyd's sentence was later reduced to 30 months on the government's
motion under Fed. R. Crim. P. 35(b).
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