United States v. Colburn ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4571
CHAMPION WILLIAM COLBURN,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Albert V. Bryan, Jr., Senior District Judge.
(CR-96-27-A)
Submitted: May 1, 1997
Decided: May 13, 1997
Before WIDENER and MURNAGHAN, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Joseph J. McCarthy, DELANEY, MCCARTHY, COLTON &
BOTZIN, P.C., Alexandria, Virginia, for Appellant. Helen F. Fahey,
United States Attorney, Gavin A. Corn, Special Assistant United
States Attorney, Alexandria, Virginia, 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Unpublished opinions are not binding precedent in this circuit.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:
Champion William Colburn pled guilty without a plea agreement
to a one-count indictment charging conspiracy to possess with intent
to distribute and to distribute 100 kilograms or more of marijuana, 21
U.S.C. § 846 (1994). He reserved the right to dispute the amount of
marijuana involved in the offense. Colburn now appeals his 70-month
sentence, alleging that the district court clearly erred in finding that
he was responsible for more than 100 kilograms of marijuana, USSG
§ 2D1.1,1 and that he had an aggravated role in the offense, USSG
§ 3B1.1(c). We affirm.
Colburn supplied 37 kilograms of marijuana to Gary Saylor in two
transactions which took place in Tucson, Arizona, in August and
October 1995. Saylor transported the marijuana to northern Virginia
for distribution. After the second purchase, Saylor was arrested in
Virginia and began cooperating with authorities.
Colburn subsequently agreed to supply Saylor with 68 kilograms
of marijuana. However, when Saylor arrived in Tucson, a disagree-
ment developed because Colburn would not permit Saylor to accom-
pany him when he went to get the marijuana from his sources and
Saylor could not agree to turn over the money to Colburn as he had
done in the past. Consequently, the third transaction was not com-
pleted. The conversations between Colburn and Saylor were pre-
served in a series of recorded telephone calls.
Colburn declined to discuss the offense with the probation officer
and did not testify at his sentencing hearing. His attorney argued that
the 68 kilograms which Colburn agreed to sell to Saylor should not
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1 United States Sentencing Commission, Guidelines Manual (Nov.
1995).
2
be included as relevant conduct because Colburn was aware that Say-
lor was working with the government and intended simply to steal his
money. Defense counsel maintained that Colburn had no intention of
delivering 68 kilograms to Saylor. In a reverse sting transaction,
negotiated amounts are included in the offense level calculation
unless the defendant establishes that he did not intend to provide or
was incapable of providing the agreed-upon amount. USSG § 2D1.1,
comment. (n.12).
Based on its review of Colburn's recorded conversations, the dis-
trict court found that he had both the intent and the capability of
delivering the negotiated 68 kilograms of marijuana. Factual findings
made by the district court in its application of the sentencing guide-
lines are reviewed for clear error. United States v. Lamarr, 75 F.3d
964, 972 (4th Cir.), cert. denied, #6D6D 6D# U.S. ___, 65 U.S.L.W. 3309(U.S. Oct. 21, 1996) (No. 95-9398). We find that the court's determi-
nation was not clearly erroneous. Colburn did not provide any evi-
dence that he knew he was dealing with an informant or that he
intended to steal the money rather than produce the marijuana.
The district court also found, based on information in the presen-
tence report, that Colburn had a leadership role because he had con-
nections with sources which smuggled marijuana into the country.2
This finding was not clearly erroneous. A defendant has the burden
of correcting any inaccurate information in the presentence report.
United States v. Terry, 916 F.2d 157, 162 (4th Cir. 1990). In the
absence of any evidence to the contrary, the district court properly
relied on information in the report which justified the adjustment.
The sentence is therefore affirmed. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.
AFFIRMED
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2 We note, in addition, that Saylor reported being recruited into the
marijuana trade by Colburn.
3