United States v. Agbon ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5540
HENRY BILLY AGBON,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of North Carolina, at Greensboro.
James A. Beaty, Jr., District Judge.
(CR-94-229)
Submitted: March 26, 1996
Decided: April 15, 1996
Before WILKINS and MOTZ, Circuit Judges, and BUTZNER,
Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
John David Bryson, WYATT, EARLY, HARRIS & WHEELER,
L.L.P., High Point, North Carolina, for Appellant. Walter C. Hol-
ton, Jr., United States Attorney, David B. Smith, Assistant United
States Attorney, Timika Shafeek, Assistant United States Attorney,
Greensboro, 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Unpublished opinions are not binding precedent in this circuit.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:
Henry Billy Agbon pled guilty to a one-count indictment charging
him with conspiracy to import more than 100 grams of heroin, 21
U.S.C.A. §§ 963, 960(b)(2)(A) (West Supp. 1995), between June
1993 and January 1994. He was sentenced to a term of 87 months
imprisonment. He appeals his sentence, contending that the district
court abused its discretion by failing to hold an evidentiary hearing
before deciding not to depart below the guideline range. We affirm.
At Agbon's sentencing in June 1995, he requested a departure
under USSG § 5K2.01 to give him the benefit of a proposed amend-
ment to USSG § 2D1.1 which did not take effect until November
1995. The amendment permits a 2-level decrease in offense level for
a defendant who has an offense level of 26 or more and who meets
the criteria set out in subdivisions (1)-(5) of USSG§ 5C1.2. Agbon
claimed that he met all the criteria. The government opposed a depar-
ture on two grounds, arguing first that a defendant should be sen-
tenced under the guidelines in effect on the date of sentencing, see 18
U.S.C.A. § 3553(a)(4)(A) (West Supp. 1995), and second, that Agbon
had not complied with the fifth requirement of USSG§ 5C1.2. Subdi-
vision (5) requires that, by the time of sentencing, the defendant must
have "truthfully provided to the Government all information and evi-
dence [he] has concerning the offense or offenses that were part of the
same course of conduct or of a common scheme or plan."
Defense counsel argued that Agbon had submitted several proffers
of information.2 The government responded that the information
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1 United States Sentencing Commission, Guidelines Manual (Nov.
1994).
2 The materials presented on appeal are unclear as to whether Agbon
was interviewed by federal agents following his proffers.
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received from Agbon had been deemed untruthful and not worth pur-
suing because it did not comport with information received from other
conspirators, with telephone records, or with intelligence concerning
entry of persons into the country. Ultimately, the district court
decided not to depart.
On appeal, Agbon contends that the district court should have held
an evidentiary hearing to determine the truthfulness of the informa-
tion he had provided before making a decision concerning the depar-
ture. He argues that only by requiring the government to prove that
his information was untruthful could the district court adequately
resolve the issue. By not doing so, he maintains that the court made
an implicit finding of his untruthfulness without a sufficient evidenti-
ary basis.
Because the amendment to USSG § 2D1.1 was not in effect when
Agbon was sentenced, the issue before the district court was not a fac-
tual dispute which the court needed to resolve to determine the sen-
tencing range, but simply the question of whether Agbon had
presented grounds sufficient to justify a departure from the range.
Agbon had an adequate opportunity at the sentencing hearing to tes-
tify and to present evidence. The district court has discretion to deter-
mine the appropriate procedure for resolving disputed sentencing
issues, including those pertaining to departures. USSG § 6A1.3. We
find that the district court did not abuse its discretion in deciding
against a departure without holding an evidentiary hearing on the
truthfulness of Agbon's proffers.
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
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