United States v. Davis ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 95-5602
IVORY LEONARD DAVIS, a/k/a Ivory,
a/k/a Edward Jay Porter,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5613
GREGORY EARL PINNIX,
Defendant-Appellant.
Appeals from the United States District Court
for the Middle District of North Carolina, at Greensboro.
N. Carlton Tilley, Jr., District Judge.
(CR-95-27)
Submitted: July 25, 1996
Decided: August 14, 1996
Before LUTTIG and MOTZ, Circuit Judges, and PHILLIPS,
Senior Circuit Judge.
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No. 95-5602 affirmed and No. 95-5613 dismissed by unpublished per
curiam opinion.
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COUNSEL
Charles A. Lloyd, Greensboro, North Carolina; K. E. Krispen Cul-
bertson, Greensboro, North Carolina, for Appellants. Walter C. Hol-
ton, Jr., United States Attorney, Robert M. Hamilton, Assistant
United States Attorney, Greensboro, North Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Ivory Leonard Davis and Gregory Earl Pinnix both pled guilty to
engaging in a conspiracy to possess crack cocaine with intent to dis-
tribute, 21 U.S.C.A. § 846 (West Supp. 1996). Davis appeals his 131-
month sentence contending that the district court clearly erred in find-
ing that he obstructed justice, USSG § 3C1.1, 1 and that it was foresee-
able to him that Pinnix would possess a firearm during the offense,
USSG §§ 1B1.3, 2D1.1(b)(1). He also challenges his sentence on con-
stitutional grounds. Pinnix appeals his 188-month sentence alleging
that the district court erred in denying him a downward departure for
diminished capacity, USSG § 5K2.13, p.s., or aberrant behavior,
USSG, Ch. 1, Pt. A, 4(d), p.s. We affirm the sentence imposed on
Davis and dismiss Pinnix's appeal.
In January 1995, Davis sent a courier from New York to North
Carolina with a kilogram of crack intended for Pinnix. The courier
was stopped for speeding in Maryland and cooperated with authorities
after the crack was discovered. Meanwhile, Davis flew to North Caro-
lina, where Pinnix met him at the airport. The two drove to the motel
where the courier was waiting with the crack. Pinnix carried a plastic
_________________________________________________________________
1 United States Sentencing Commission, Guidelines Manual (Nov.
1994).
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bag containing $25,890 in cash into the room. Davis and Pinnix then
removed the crack from a hidden compartment in the courier's car
and carried it into the motel room. As they were unwrapping the
crack, they were arrested. A firearm was found under the driver's seat
of Pinnix's car. Pinnix informed authorities that he began dealing
crack with his co-defendant in September 1994.
Davis told the arresting officers that his name was Edward Jay Por-
ter. He was indicted under that name and entered a not guilty plea
before a district court judge. Two months later, while plea negotia-
tions were ongoing, the government received information that he had
used an alias. Davis then revealed his true name and the government
learned that charges of attempted murder and other violent acts were
pending against him in New Jersey.
Davis's conduct clearly warranted an adjustment for obstruction of
justice because he willfully provided materially false information to
the district court judge when he entered his plea under a false name.
USSG § 3C1.1, comment. (n.3(f)). False information is material if it
would tend to influence an issue under determination. Id. (n.5).
Davis's correct identity and past criminal conduct was relevant to the
issue of detention and, potentially, to the determination of his criminal
history and his sentence. Although Davis's true identity was revealed
before he was sentenced, and the pending state charges did not
increase his criminal history score, the adjustment is properly given
for an attempt to obstruct justice even when it is unsuccessful.
We find that Davis's sentence was properly enhanced under USSG
§ 2D1.1(b)(1), comment. (n.3), which adds two levels if a firearm was
present unless its connection to the offense is clearly improbable.
While Davis asserted that he did not know the pistol was in the car,
the district court found that Pinnix possessed the firearm in further-
ance of the conspiracy and that it was reasonably foreseeable to Davis
that Pinnix would possess a firearm to protect the large amount of
cash he had in the car on the way to the motel and the large amount
of crack he intended to obtain there. USSG § 1B1.3(a)(1)(B). The
court's finding was not clearly erroneous. See United States v. White,
875 F.2d 427, 433 (4th Cir. 1989).2
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2 The Supreme Court's decision in Bailey v. United States, ___ U.S.
___, 64 U.S.L.W. 4039 (U.S. Dec. 6, 1995) (No. 94-7448/7492), does
not change this result. See United States v. Castillo, 77 F.3d 1480, 1499
n.34 (5th Cir. 1996).
3
Davis's arguments with regard to the constitutionality of the penal-
ties for crack offenses are meritless in light of our prior decisions.
United States v. Thomas, 900 F.2d 37, 39-40 (4th Cir. 1990); United
States v. Johnson, 54 F.3d 1150, 1163 (4th Cir. 1995); United States
v. Fisher, 58 F.3d 96, 99 (4th Cir.), cert. denied, ___ U.S. ___, 64
U.S.L.W. 3270 (U.S. Oct. 10, 1995) (No. 95-5923). The district
court's decision against a departure in Pinnix's case is not reviewable
on appeal. United States v. Bayerle, 898 F.2d 28, 31 (4th Cir.), cert.
denied, 498 U.S. 819 (1990).
We therefore affirm the sentence imposed on Davis. We dismiss
the appeal of Pinnix. 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.
No. 95-5602 - AFFIRMED
No. 95-5613 - DISMISSED
4