United States v. Aiken ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 96-4171
LAVERN AIKEN, a/k/a Vern, a/k/a
Vata, a/k/a Lavern Lee,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Orangeburg.
Charles E. Simons, Jr., Senior District Judge.
(CR-95-489)
Submitted: August 20, 1996
Decided: September 16, 1996
Before HALL, HAMILTON, and MOTZ, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
David Bruce Betts, Columbia, South Carolina, for Appellant. J. Rene
Josey, United States Attorney, Beth Caldwell, Assistant United States
Attorney, Columbia, South Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Lavern Aiken pled guilty to possession with intent to distribute
cocaine base, in violation of 21 U.S.C.A. § 841 (West 1981 & Supp.
1995). He appeals his fifty-seven month sentence, claiming that in the
course of determining his sentence the district court used incriminat-
ing evidence from his proffer agreement with the government in vio-
lation of the proffer agreement. Additionally, Aiken challenges the
district court's determination of the amount of cocaine base attribut-
able to him under U.S.S.G. § 2D1.1 (Nov. 1995). Finding no revers-
ible error, we affirm.
Aiken was an operative in a significant drug distribution ring in
Orangeburg, South Carolina. As part of their investigation, police sent
a wired confidential informant to a suspected crack house to purchase
an illegal firearm and possibly drugs. While at the house, the infor-
mant observed four to five ounces of crack cocaine and two to three
thousand dollars located on a kitchen table. Additionally, the infor-
mant observed Aiken, who was in the front yard, take a drug order
and money from unknown persons in a car, walk inside the house, and
upon exiting the house give the customer a rock of crack cocaine.
After Aiken was indicted and arrested, he entered into a "proffer
agreement" and was debriefed by the government. A provision of the
proffer agreement was that evidence unknown to the government at
the time of the proffer could not be used against Aiken. Later, Aiken,
with the benefit of a written plea agreement, pled guilty to possession
with intent to distribute cocaine base. The district court sentenced
Aiken to fifty-seven months incarceration with three years supervised
release.
Aiken now claims that the district court in determining his sentence
used information in violation of his proffer agreement. Before this
claim can succeed, Aiken must demonstrate some factual basis for his
claim by notifying the court of what information was obtained and
used improperly. United States v. O'Brien, 853 F.2d 522, 527 (7th
Cir. 1988). Aiken presents no such evidence. When Aiken made his
proffer, a co-defendant had already tendered a confession outlining
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Aiken's role in the drug operation, and the government possessed the
statements of the confidential informant and his clandestine record-
ing. Our review of the record discloses that the district court did not
use information provided by Aiken which was unknown by the gov-
ernment at the time of Aiken's proffer agreement.
Next, Aiken asserts that the district court erred in attributing the
four to five ounces of crack cocaine observed on the kitchen table to
him for sentencing purposes. Aiken's assertion is without merit.
Because the quantity of drugs is only a sentencing factor and not an
element of the offense, the government need only prove quantity by
a preponderance of the evidence. United States v. Powell, 886 F.2d
81, 85 (4th Cir. 1989), cert. denied, 493 U.S. 1084 (1990). Aiken and
the government disagreed on the amount of crack cocaine attributable
to Aiken; thus, the district court determined the amount after specific
fact-finding. United States v. Goff, 907 F.2d 1441, 1444-45 (4th Cir.
1990). Evidence at sentencing showed that Aiken retrieved and sold
crack cocaine from inside the crack house only moments after the
confidential informant had observed four to five ounces of crack
cocaine on a table in the kitchen. Additionally, Aiken was present
when additional amounts of crack cocaine were sold from the house.
Consequently, we cannot say the district court's attribution of four or
five ounces of crack cocaine to Aiken was clearly erroneous. See
United States v. Ricco, 52 F.3d 58, 62 (4th Cir.), cert. denied, 116
S.Ct. 254 (1995).
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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