United States v. Plasimond , 102 F. App'x 283 ( 2004 )

Vacated by Supreme Court, January 24, 2005
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4629
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MAGUESTE PLASIMOND, a/k/a Tyrone,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L. Voorhees,
District Judge. (CR-98-109)
Submitted: May 26, 2004 Decided: June 16, 2004
Before TRAXLER, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas N. Cochran, Assistant Federal Public Defender, Greensboro,
North Carolina, for Appellant. Robert J. Conrad, Jr., United
States Attorney, D. Scott Broyles, Assistant United States
Attorney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Magueste Plasimond pled guilty to conspiracy to possess
with intent to distribute cocaine and cocaine base, in violation of
21 U.S.C. § 846 (2000), possession with intent to distribute
cocaine and cocaine base, in violation of 21 U.S.C. § 841(a)(1)
(2000), and aiding and abetting, in violation of 18 U.S.C. § 2(2000). The district court sentenced Plasimond to a total
imprisonment term of 168 months, to be followed by a five-year term
of supervised release. Plasimond contends that the district court
erred in failing to apply a two-level sentence reduction under the
safety valve provision of U.S. Sentencing Guidelines Manual,
§§ 2D1.1(b)(6), 5C1.2 (1998). Finding no reversible error, we
affirm.
To qualify for sentencing under the safety valve
provision, a defendant must meet all five criteria set out in USSG
§ 5C1.2(a)(1)-(5). A defendant who meets these criteria may be
sentenced within the guideline range without regard to any
statutory minimum sentence. He may also receive a two-level
reduction if the offense level is level 26 or greater. Plasimond’s
presentence investigation report (“PSR”) did not recommend a two-
level sentence reduction, and Plasimond failed to object in the
district court to the PSR’s calculation of his offense level.
Therefore, his claim is reviewed for plain error. See United
States v. Olano, 507 U.S. 725, 732 (1993). Because the record
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shows that Plasimond failed to truthfully provide all information
to the Government concerning his drug offenses prior to sentencing,
we conclude that the district court did not plainly err in failing
to apply a two-level sentence reduction under the safety valve
provision. See United States v. Withers, 100 F.3d 1142, 1146 (4th
Cir. 1996).
Accordingly, we affirm Plasimond’s 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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