United States v. Slater

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4556
JAMES W. SLATER,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
John T. Copenhaver, Jr., District Judge.
(CR-01-160)
Submitted: June 30, 2003
Decided: July 16, 2003
Before WIDENER, NIEMEYER, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Mary Lou Newberger, Federal Public Defender, Charleston, West
Virginia, for Appellant. Kasey Warner, United States Attorney, Ste-
ven I. Loew, Assistant United States Attorney, Charleston, West Vir-
ginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. SLATER
OPINION
PER CURIAM:
James W. Slater pled guilty to possession of a firearm by a con-
victed felon, 18 U.S.C. § 922(g)(1) (2000), and was sentenced to a
term of ten years imprisonment. Slater appeals his sentence, contest-
ing the district court’s decision to make an adjustment for obstruction
of justice, U.S. Sentencing Guidelines Manual § 3C1.1 (2001), by
adopting the recommendation in the presentence report without mak-
ing an independent fact finding. We affirm.
Slater’s presentence report contained a recommendation for an
obstruction of justice adjustment based on testimony at a preliminary
hearing concerning revocation of his bond in which it was alleged that
Slater had attempted to bribe, intimidate and coerce his son into tak-
ing responsibility for a large quantity of marijuana found in a house
occupied by Slater when he was initially taken into custody by state
authorities. Although Slater vigorously challenged a recommended
enhancement under USSG § 2K2.1(b)(5) for possession of a firearm
in connection with another felony—the marijuana offense—he did not
object to the adjustment for obstruction of justice. Slater’s sentencing
hearing was continued twice to provide him a full opportunity to con-
test the subsection (b)(5) enhancement and decide whether he wished
to withdraw his guilty plea, but Slater made no mention of the proba-
tion officer’s recommendation for an obstruction of justice adjustment
until the district court had made its findings and determined the
guideline range. In his allocution to the court just before sentence was
imposed, Slater stated that he "didn’t obstruct."
Because Slater did not contest the obstruction of justice adjustment
in the district court, the district court’s adoption of the recommenda-
tion without an independent finding is reviewed for plain error.
United States v. Olano, 507 U.S. 725, 732-37 (1993) (unpreserved
error may be corrected only if error occurred, that was plain, and that
affects substantial rights, and if failure to correct error would seri-
ously affect the fairness, integrity, or public reputation of judicial pro-
ceedings); United States v. McAllister, 272 F.3d 228, 230 (4th Cir.
2001).
UNITED STATES v. SLATER 3
We conclude that the district court did not plainly err. The district
court may adopt the findings in the presentence report without further
inquiry unless the defendant makes an affirmative showing that the
information in the presentence report is inaccurate or unreliable.
United States v. Love, 134 F.3d 595, 606 (4th Cir. 1998) (citing
United States v. Terry, 916 F.2d 157, 162 (4th Cir. 1990)). Slater
made no affirmative showing that the information in the presentence
report was inaccurate. His statement in mitigation was not an objec-
tion, but even if we were to consider it as such, it was no more than
a "mere objection" without supporting evidence. Terry, 916 F.2d at
162.
We therefore affirm the sentence imposed by the district court. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
AFFIRMED