United States v. Green ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4086
KHALID GREEN,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
James C. Fox, Chief District Judge.
(CR-95-136)
Submitted: October 17, 1996
Decided: October 29, 1996
Before MURNAGHAN and WILLIAMS, Circuit Judges, and
BUTZNER, Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
R. Daniel Boyce, BOYCE LAW FIRM, Raleigh, North Carolina, for
Appellant. Janice McKenzie Cole, United States Attorney, John S.
Bowler, Assistant United States Attorney, Raleigh, North Carolina,
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Unpublished opinions are not binding precedent in this circuit.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:
Khalid Green appeals the 72-month sentence he received after he
pled guilty to conspiracy to possess crack cocaine with intent to dis-
tribute, 21 U.S.C.A. § 846 (West Supp. 1996). He maintains that the
district court clearly erred in determining the amount of crack for
which he was responsible, USSG § 2D1.1,1 and in finding that he was
not a minor participant, USSG § 3B1.2. He also contends that the dis-
trict court's use of a mechanical sentencing practice in determining
the extent of a downward departure from the guideline range based
on his substantial assistance, USSG § 5K1.1, was a violation of due
process. We affirm the sentence.
Green was arrested while he was waiting at a shopping mall in
Raleigh, North Carolina, for 124 grams of crack which was to be
delivered to him by a co-conspirator. Green began to cooperate imme-
diately, admitted his involvement with the 124 grams, and told inves-
tigators that he had previously received two to four ounces of crack
for distribution on several occasions. Using an estimate of three
ounces of crack on two occasions (170.1 grams), the probation officer
recommended that 292 grams of crack be attributed to Green for sen-
tencing purposes.
Green contested the recommendation but provided no evidence to
the contrary at the sentencing hearing. Instead, he argued that his
statements about additional amounts should not be considered
because they could have been protected under USSG§ 1B1.8 if he
had had a cooperation agreement at the time. However, Green had no
agreement. The district court found that Green was responsible for the
292 grams with which he had admitted his involvement. We find that
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1 United States Sentencing Commission, Guidelines Manual (Nov.
1995).
2
the court did not clearly err in doing so, and that it made adequate
findings to resolve the issue. Green also contended that he should
receive a minor role adjustment, but put on no evidence concerning
his part in the conspiracy. A participant in a drug conspiracy who dis-
tributes drugs does not have a minor role. United States v. Brooks,
957 F.2d 1138, 1149 (4th Cir.), cert. denied, 505 U.S. 1228 (U.S.
1992). The district court did not clearly err in denying Green the
adjustment.
Finally, Green argues that the district court violated due process in
departing downward from the guideline range of 87-108 months
because the court mentioned that, for consistency, it usually consid-
ered a 25% departure for cooperation to be a proper departure for sub-
stantial assistance, but would impose a lower sentence if the
defendant had been put at risk or participated in controlled transac-
tions. Green contends that the employment of such a sentencing prac-
tice was an incorrect application of the sentencing guidelines which
deprived him of an individualized sentence and of an alternative to
imprisonment. He relies on United States v. King , 53 F.3d 589, 591-
92 (3d Cir. 1995), and United States v. Johnson , 33 F.3d 8, 10 (5th
Cir. 1994), which held that such practices prevent an individualized
assessment of the defendant's cooperation.2
Green's argument fails for the following reasons. He was aware of
the court's practice, but made no objection to it. Such a practice can-
not be termed plain error under Fed. R. Crim. P. 52(b). See United
States v. Cosgrove, 73 F.3d 297, 303 (11th Cir. 1996). Moreover, the
record discloses that Green received an individualized sentence. The
government related in detail Green's assistance and willingness to do
as much as he could to cooperate. Green then requested that he be
sentenced to boot camp; to qualify, he needed a sentence of no more
than 30 months. However, the government expressed a reservation
about Green's suitability for boot camp because he returned to selling
crack within days after he was arrested on state crack charges in May
1995 and agreed to participate in a felony drug diversion program.
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2 Under USSG § 5K1.1, the court may consider the significance, use-
fulness, nature, extent and timeliness of the defendant's assistance, the
truthfulness, completeness and reliability of information provided by
him, and any injury, danger, or risk of injury suffered by him.
3
The court imposed a sentence of 72 months imprisonment. It is a rea-
sonable inference that the court's decision to forego boot camp
(Green's real complaint) had as much to do with Green's behavior
after he received lenient treatment in state court as with its sentencing
practice.
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
4