United States v. Faison , 17 F. App'x 126 ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-4855
MARY LEE FAISON,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-4875
DAVID MIDDLETON, JR.,
Defendant-Appellant.

Appeals from the United States District Court
for the District of South Carolina, at Charleston.
Patrick Michael Duffy, District Judge.
(CR-98-455)
Submitted: July 31, 2001
Decided: August 23, 2001
Before NIEMEYER, MOTZ, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Coming B. Gibbs, Jr., Charleston, South Carolina; Wells G. Dickson,
Jr., Charleston, South Carolina, for Appellants. Scott N. Schools,
2 UNITED STATES v. FAISON
United States Attorney, Miller W. Shealy, Jr., Assistant United States
Attorney, Rhett DeHart, Assistant United States Attorney, Charleston,
South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Mary Lee Faison and David Middleton, Jr., pled guilty to conspir-
ing to distribute cocaine and cocaine base, in violation of 21 U.S.C.A.
§ 841(a)(1) (West 1999), and conspiring to launder the proceeds of
specified unlawful activity, in violation of 18 U.S.C.A. § 1956(a)(1)
(West Supp. 2000). They were sentenced to 240 months and 200
months, respectively. On appeal, they maintain that the district court:
(1) erred in refusing to order the Government to move for a down-
ward departure; (2) erred in calculating the amount and nature
of drugs attributed to each of them at sentencing; (3) erred in
refusing to grant them a third point reduction for timely notification
of intent to plead guilty under U. S. Sentencing Guidelines Manual
§ 3E1.1(b)(2) (2000); and (4) misapplied the Supreme Court’s ruling
in Apprendi v. New Jersey, 530 U.S. 466 (2000).
When there is no plea agreement or the plea agreement does not
obligate the government to move for a departure if the defendant pro-
vides substantial assistance, the district court may review the govern-
ment’s decision not to move for a departure only if the government’s
decision is based on an unconstitutional motive or is not related to a
legitimate government purpose. Wade v. United States, 504 U.S. 181,
185-86 (1992). If the government promises in the plea agreement that
it will move for a departure in the event the defendant provides sub-
stantial assistance, and the defendant alleges that the government’s
refusal to make the motion is a breach of the agreement, the district
court may consider whether a breach has occurred. United States v.
UNITED STATES v. FAISON 3
Conner, 930 F.2d 1073, 1076 (4th Cir. 1991). The defendant bears the
burden of proving by a preponderance of the evidence that the gov-
ernment has breached the agreement, i.e., that he has actually given
the degree of substantial assistance contemplated by the agreement.
Id. The court’s factual determination as to whether a breach occurred
is reviewed under the clearly erroneous standard. Id. In this case, the
district court found that under the circumstances the government was
within its discretion to find that Appellants had not substantially com-
plied with the plea agreement. We find no clear error in this determi-
nation.
Appellants also contend that the district court erred in calculating
the amount and nature of drugs attributed to them. This court reviews
the district court’s calculations concerning the amount of drugs attrib-
utable to a defendant for sentencing purposes for clear error. United
States v. Randall, 171 F.3d 195, 210 (4th Cir. 1999). A finding is
clearly erroneous when, although there is evidence to support it, the
reviewing court on the entire evidence is left with the definite and
firm conviction that a mistake has been committed. United States v.
United States Gypsum Co., 333 U.S. 364, 395 (1948).
When the amount of drugs is disputed, the government bears the
burden of proving the quantity of drugs attributable to the defendant
by a preponderance of the evidence. United States v. Gilliam, 987
F.2d 1009, 1013 (4th Cir. 1993). The district court may rely on infor-
mation in the presentence report unless the defendant affirmatively
shows that the information is unreliable. United States v. Love, 134
F.3d 595, 606 (4th Cir. 1998). If the defendant objects to a quantity
recommended in a presentence report, the district court must make an
independent resolution of the factual issues raised by the objection.
United States v. Williams, 152 F.3d 294, 300-01 (4th Cir. 1998). The
district court has broad discretion concerning what information to
credit in determining drug amount. United States v. Cook, 76 F.3d
596, 604 (4th Cir. 1996) (citing United States v. Falesbork, 5 F.3d
715, 722 (4th Cir. 1993)). A defendant may be held accountable for
quantities of drugs attributable to the conspiracy that were reasonably
foreseeable and taken within the scope of the conspiratorial agree-
ment. Gilliam, 987 F.2d at 1012-13; USSG § 1B1.3(a)(1)(B) & com-
ment (n.2). We have reviewed the record and the transcript of the
4 UNITED STATES v. FAISON
sentencing hearing and find no clear error in the nature and amount
of drugs attributed to Appellants.
Appellants also argue that the district court erred in not granting
them a third point reduction under USSG § 3E1.1(b)(2) for their
prompt notification of their intent to plead guilty. A court may reduce
by two levels the offense level of a defendant who clearly demon-
strates acceptance of responsibility for his offense. USSG § 3E1.1(a).
A three-level reduction is available under USSG § 3E1.1(b) to a
defendant who (1) timely provides complete information to the gov-
ernment about his own involvement in the offense, or (2) timely noti-
fies the government that he intends to plead guilty, thus saving the
government the effort of trial preparation and also saving the court’s
time. The district court’s denial of a reduction under USSG § 3E1.1
cannot be disturbed unless clearly erroneous. United States v. Cusack,
901 F.2d 29, 31 (4th Cir. 1990).
In this case, the district court granted the Appellants a two-level
reduction for acceptance of responsibility; it did not, however, grant
the Appellants a third point reduction for timely notification of intent
to plead guilty. We have reviewed the record and find no clear error
in the district court’s determination that a further point reduction was
not warranted under USSG § 3E1.1(b).
Last, we reject Appellants argument that they were sentenced in
violation of Apprendi. They argue that Apprendi requires that in drug
prosecution cases, a grand jury must return an indictment specifying
the amount of drugs, used by the court, in a factual finding, to deter-
mine the relevant guideline, even if the sentence does not exceed the
statutory maximum. Appellants’ argument is without merit. First,
Apprendi is not implicated in this case as neither Appellant was sen-
tenced above the statutory maximum. Second, their argument is fore-
closed by this court’s decision in United States v. Kinter, 235 F.3d
192, 199-201 (4th Cir. 2000), cert. denied, 121 S. Ct. 1393 (2001), in
which this court held that the government is not required under
Apprendi to submit to a jury and prove beyond a reasonable doubt
facts underlying sentence enhancements that increase the guideline
range but do not increase the statutory maximum sentence. 235 F.3d
at 201-02. This court further found that the relevant maximum sen-
UNITED STATES v. FAISON 5
tence is the statutory maximum, not the maximum sentence under the
guidelines. Id. at 201.
We therefore affirm Faison’s and Middleton’s convictions and sen-
tences. 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