United States v. Daniel ( 2000 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4652
LEON CLEOFOSTER DANIEL,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Greenville.
Henry M. Herlong, Jr., District Judge.
(CR-98-795)
Submitted: April 28, 2000
Decided: September 21, 2000
Before NIEMEYER and KING, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
James H. Price, III, JAMES H. PRICE, III, P.A., Greenville, South
Carolina, for Appellant. Harold Watson Gowdy, III, OFFICE OF
THE UNITED STATES ATTORNEY, Greenville, South Carolina,
for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Leon C. Daniel appeals his conviction and sentence for conspiracy
to possess with intent to distribute cocaine base in violation of 21
U.S.C.A. § 846 (West 1999). His attorney has filed a brief pursuant
to Anders v. California, 386 U.S. 738 (1967), raising claims regarding
sentencing but stating that, in his view, there are no meritorious issues
for appeal. Daniel has filed a pro se supplemental brief. Finding that
none of the issues raised has merit, and discerning no other error in
the record, we affirm.
Daniel, through counsel, claims three sentencing errors by the dis-
trict court. He claims the district court erred in (1) attributing 47.5
grams of crack cocaine toward his base offense level by converting
the $1147 cash found in his possession into crack cocaine; (2) attri-
buting 250 grams of crack cocaine found in his co-conspirator's hotel
room toward his base offense level by converting $6000 to crack
cocaine; and (3) attributing an additional 162 grams of crack cocaine
toward his base offense level by converting $3867 in drug proceeds
from an unrelated arrest six weeks prior to the occurrence of the
instant offense.
The calculation of an amount of drugs to establish a base offense
level is a factual determination that we review for clear error. See
United States v. Daughtrey, 874 F.2d 213, 217-18 (4th Cir. 1989).
The sentencing court may convert seized currency into drugs for the
purpose of setting an offense level. See United States v. Hicks, 948
F.2d 877, 881-82 (4th Cir. 1991); see also USSG § 2D1.1, comment.
n.12 (1998). However, it is the government's burden to prove, by pre-
ponderance of the evidence, the connection between the money seized
and the drug related activity. See United States v. Gonzales-Sanchez,
953 F.2d 1184, 1187 (9th Cir. 1992).
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Daniel's claims are based on the district court's decision not to
credit his version of events. Because we do not review credibility
determinations on appeal, we deny relief on the claims raised in coun-
sel's Anders brief. See United States v. Romer, 148 F.3d 359, 364 (4th
Cir. 1998), cert. denied, 525 U.S. 1141 (1999); United States v. Wil-
son, 118 F.3d 228, 234 (4th Cir. 1997).
Daniel advances six pro se claims in his pro se supplemental brief.
Daniel first claims that the district court erred in denying his motion
to withdraw his guilty plea. This court reviews the denial of a motion
to withdraw a guilty plea for abuse of discretion. See United States
v. Craig, 985 F.2d 175, 178 (4th Cir. 1993). A defendant bears the
burden of demonstrating to the district court's satisfaction that a "fair
and just reason" supports his request to withdraw. Fed. R. Crim. P.
32(e).
We consider six factors when reviewing whether the trial court
abused its discretion in denying a motion to withdraw a guilty plea
(1) whether the defendant has offered credible evidence that his plea
was not knowing or not voluntary; (2) whether the defendant has
credibly asserted his legal innocence; (3) whether there has been a
delay between the entering of the plea and the filing of the motion;
(4) whether defendant has had close assistance of competent counsel;
(5) whether withdrawal will cause prejudice to the government; and
(6) whether it will inconvenience the court and waste judicial
resources. See United States v. Moore, 931 F.2d 245, 248 (4th Cir.
1991). Our review reveals that none of the Moore factors weigh in
Daniel's favor. Accordingly, we deny relief on this claim.
Daniel also claims that the district court erred in not sua sponte
granting a downward departure pursuant to the "safety-valve" provi-
sions of USSG § 5C1.2 (1998) and 18 U.S.C.A.§ 3553(f) (West
Supp. 2000). Daniel did not move for application of the safety valve
provision in the district court; therefore, our review is for plain error.
See United States v. Olano, 507 U.S. 725, 731-35 (1993). Among
other criteria to qualify for the safety valve reduction, Daniel was
required to make an affirmative effort to disclose what he knew about
the offenses. See United States v. Ivester, 75 F.3d 182, 184-85 (4th
Cir. 1996). Daniel lied to investigators and the probation officer who
prepared his pre-sentence report. Accordingly, he was not entitled to
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a downward departure based upon the safety-valve provision. See
United States v. Marin, 144 F.3d 1085, 1091 (7th Cir. 1998), cert.
denied, 525 U.S. 916 (1998); United States v. Long, 77 F.3d 1060,
1062-63 (8th Cir. 1996).
Daniel next claims that the district court should have granted a
downward adjustment based upon his minor role in the offense under
USSG § 3B1.2(b) (1998). Daniel did not object to the PSR's recom-
mendation that no adjustment was warranted based upon his role in
the offense. Therefore, this court's review is for plain error. See
Olano, 507 U.S. at 731-35.
Under the United States Sentencing Guidelines a"minor" role is
defined as a less culpable role in the offense than that of the other par-
ticipants. See USSG § 3B1.2, comment n.3; Daughtrey, 874 F.2d at
219. Daniel produces no evidence to support his contention that the
district court plainly erred in not finding his participation in the
offense to be minor. To the contrary, Daniel admits that he was
actively involved in the distribution end of the drug conspiracy. His
involvement was therefore too extensive to support a minor role
offense level adjustment. See id.Daniel also claims that the district court erred in denying the
motion to suppress the evidence found in his co-conspirator's hotel
room. Because Daniel has consistently asserted that he did not occupy
the hotel room and therefore, lacked any possessory or privacy inter-
est therein, he lacks standing to challenge this search. See, e.g.,
United States v. Clark, 891 F.2d 501, 506 (4th Cir. 1989).
Daniel's penultimate pro se claim is that the district court erred in
finding certain drug activity reasonably foreseeable to Daniel for the
purposes of ascertaining his relevant conduct for sentencing purposes.
See USSG § 1B1.3 (1998). Daniel relies upon this court's decision in
United States v. Gilliam, 987 F.2d 1009, 1013 (4th Cir. 1993), to sup-
port his assertion that he was entitled to an evidentiary hearing to
ascertain the amount of drugs foreseeable to him.
The record reflects that district court specifically detailed the alle-
gations contained in the indictment, and unequivocally informed Dan-
iel that his sentence was to be determined by the amount of drugs
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attributable to him. Moreover, the indictment conformed in all
respects with the conduct to which Daniel pleaded guilty. Finally,
Daniel's probation officer's recommendations regarding the amount
of drugs attributable to Daniel were supported by sufficient indicia of
reliability. Gilliam is therefore inapplicable, and we deny relief upon
this claim. See Gilliam, 987 F.2d at 1013-14.
Finally, Daniel claims that a prior drug-related traffic stop was too
remote in time and place to be part of the same plan or scheme under
USSG § 1B1.3 (1998), and therefore the district court erred in includ-
ing in converting $3867 in cash found at the stop into crack for the
purpose of sentencing Daniel for his role in the instant conspiracy.
Because of the temporal proximity to the instant offense, as well as
the drug-related commonality of the two incidents, the district court
did not clearly err in converting the cash found in Daniel's possession
during the previous traffic stop to crack cocaine for sentencing pur-
poses.
Accordingly, we affirm Daniel's conviction and sentence. We also
deny Daniel's pending motion for appointment of new counsel. As
this is an Anders appeal, we have throughly reviewed the record,
including the transcripts of the plea and sentencing hearings, and have
found no issues of arguable merit. This court requires that counsel
inform his client, in writing, of the right to petition the Supreme Court
of the United States for further review. If the client requests that a
petition be filed, but counsel believes that such a petition would be
frivolous, then counsel may move in this court for leave to withdraw
from representation. Counsel's motion must state that a copy thereof
was served on the client. 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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