United States v. Swain ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4041
JOSE SWAIN, a/k/a Little Jack,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of West Virginia, at Beckley.
Elizabeth V. Hallanan, District Judge.
(CR-95-73)
Submitted: March 27, 1997
Decided: April 8, 1997
Before RUSSELL, LUTTIG, and MICHAEL,
Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
E. Ward Morgan, WHITE, SMITH, MORGAN & SCANTLEBURY,
L.C., Bluefield, West Virginia, for Appellant. Rebecca A. Betts,
United States Attorney, John C. Parr, Assistant United States Attor-
ney, Charleston, West Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Jose Swain appeals the district court's calculation under the Sen-
tencing Guidelines of his criminal history points in determining
Swain's eligibility for the safety valve provision of 18 U.S.C.
§ 3553(f) (1994). Swain contends that the district court violated his
"substantive and procedural rights to due process of law" in that the
court did not make sufficient factual findings regarding his criminal
history. Specifically, Swain claims that the district court erred in fail-
ing to conduct an independent inquiry regarding the reliability of two
juvenile adjudications in Georgia. Finding no error, we affirm.
Swain presented no evidence in the district court, and advances no
argument in this court, that would suggest that the juvenile adjudica-
tions are somehow deficient. "Without an affirmative showing the
information is inaccurate, the court is free to adopt the findings of the
[presentence report] without more specific inquiry or explanation."
United States v. Terry, 916 F.2d 157, 162 (4th Cir. 1990) (internal
quotations and citation omitted). Here, the district court stated that it
found the information reliable and appropriately included in the crim-
inal history score.
Swain attempts to rely on Fed. R. Crim. P. 32(c)(1) for the proposi-
tion that a more specific finding by the district court was necessary.
However, even assuming that the district court's statement finding the
information reliable was somehow deficient, Swain's objection to the
use of the juvenile adjudication, without more, is insufficient to create
a controverted matter requiring any more specific finding. It was
Swain's burden to show that the information in the presentence report
was unreliable and "articulate the reasons why the facts contained
therein are untrue or inaccurate." Terry, 916 F.2d at 162; see also
United States v. Gilliam, 987 F.2d 1009, 1013 (4th Cir. 1993) ("[T]he
Government carries its burden if a defendant fails to properly object
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to a recommended finding in a presentence report that the court deter-
mines to be reliable."). Swain did no more than suggest to the district
court that the inclusion of the juvenile adjudications would overrepre-
sent his criminal history. Without more, the district court did not err
in calculating Swain's criminal history by including those offenses.
The two juvenile adjudications gave Swain more than one criminal
history point, which made him ineligible for the safety valve provi-
sion. 18 U.S.C. § 3553(f). There was no error in sentencing Swain
according to the statutory minimum. 21 U.S.C. § 841(a)(1)(A)(iii)
(1994). 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
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