United States v. McIlwain

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-40793
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BUFFIE MCILWAIN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 9:00-CR-55-1
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February 20, 2002
Before JOLLY, JONES, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Buffie McIlwain appeals the judgment of conviction following
her entry of a guilty plea to a charge of possession with intent
to distribute less than 100 kilograms of marijuana. McIlwain
contends that the Government breached the plea agreement, the
district court erred when it included cocaine as well as
marijuana in the determination of her base offense level, and the
district court erred when it denied her a decrease for being a
minor participant.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 01-40793
-2-
We review de novo the Government’s compliance with a plea
agreement. United States v. Valencia, 985 F.2d 758, 760 (5th
Cir. 1993). We consider whether the Government’s conduct is
consistent with the defendant’s reasonable understanding of the
agreement. United States v. Cantu, 185 F.3d 298, 304 (5th Cir.
1999).
The Government did not stipulate in the plea agreement that
McIlwain’s sentence would be based solely on the quantity of
marijuana. The plea agreement in fact cautioned McIlwain that
her sentence was to be imposed by the district court in
accordance with the Sentencing Guidelines and that any estimate
of the probable sentence that McIlwain may have received from
counsel or the Government was not a prediction or a promise and
was not binding on the Government or on the district court. The
Government’s clarification of its position at sentencing
concerning McIlwain’s knowledge of the cocaine did not constitute
a breach of the plea agreement. See United States v. Reeves,
255 F.3d 208, 210 (5th Cir. 2001).
A defendant’s base offense level for a drug-trafficking
offense is determined by the quantity of drugs involved; the
applicable drug quantity includes drugs with which the defendant
was directly involved and drugs that can be attributed to her as
relevant conduct. United States v. Foy, 28 F.3d 464, 476 (5th
Cir. 1994); U.S.S.G. § 1B1.3(a)(1). We review the district
court’s determination of drug quantity for clear error. United
States v. Young, 981 F.2d 180, 185 (5th Cir. 1993).
No. 01-40793
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McIlwain admitted involvement with marijuana and cocaine at
the time of her arrest. Because McIlwain has not presented
evidence to rebut the information in the presentence report, the
district court was free to rely on the presentence report at
sentencing. United States v. Vital, 68 F.3d 114, 120 (5th Cir.
1995); Young, 981 F.2d at 185.
We review a district court’s finding concerning a
defendant’s role in the offense for clear error. Burton v.
United States, 237 F.3d 490, 504 (5th Cir. 2000). McIlwain bears
the burden of establishing entitlement to a reduction for her
role in the offense by a preponderance of the evidence. Id. A
“minor” participant is “any participant who is less culpable than
most other participants, but whose role could not be described as
minimal.” U.S.S.G. § 3B1.2, comment. (n.3).
McIlwain was driving the vehicle when the police made the
stop. She was a listed driver on the vehicle rental agreement.
The police found over 23 kilograms of marijuana and over one
kilogram of cocaine in the vehicle. At the time of the stop,
McIlwain admitted knowledge and control of the marijuana and
cocaine. McIlwain’s admitted role as a courier does not
necessarily make her a minor participant. See United States v.
Rojas, 868 F.2d 1409, 1410 (5th Cir. 1989); United States v.
Gallegos, 868 F.2d 711, 713 (5th Cir. 1989). The judgment of the
district court is AFFIRMED.