United States v. Whitmore ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4144
REGINALD BERNARD WHITMORE,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Dennis W. Shedd, District Judge.
(CR-97-367-DWS)
Submitted: October 20, 1998
Decided: November 16, 1998
Before WIDENER, NIEMEYER, and LUTTIG, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Debra Y. Chapman, Columbia, South Carolina, for Appellant. J. Rene
Josey, United States Attorney, Jane B. Taylor, Assistant United States
Attorney, Columbia, South Carolina, 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Unpublished opinions are not binding precedent in this circuit.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:
Reginald Whitmore appeals from the district court's judgment sen-
tencing him upon his conviction for conspiracy to possess with intent
to distribute cocaine base in violation of 21 U.S.C.§ 846 (1994). For
the reasons set forth below, we affirm.
In April 1997, Reginald Whitmore, Richard Walker, and two other
individuals were indicted in the District of South Carolina on conspir-
acy and drug distribution charges. Following his indictment, Walker
provided law enforcement agents with information about the drug dis-
tribution offenses charged in the indictment. Government agents pre-
pared a written report ("DEA 6") summarizing an interview
conducted with Walker. This report was later turned over to Whit-
more and the other codefendants as part of the discovery process in
their criminal cases. Whitmore ultimately pled guilty to Count One of
the indictment charging him with conspiracy to distribute and possess
cocaine.
At sentencing the government presented the testimony of Drug
Enforcement Administration ("DEA") agent Cal Thomas. Thomas
testified that after Walker's arrest, he received phone calls from
Walker and some of his relatives concerned about the distribution of
the DEA 6 in the community. Although Thomas never confirmed that
the DEA 6 was being distributed or that Whitmore was the person
responsible, Thomas testified that concerned individuals relayed spe-
cific information to him that they would not have known about unless
the DEA 6 was being disseminated, and that at least one person told
him that Whitmore had distributed copies. Thomas further stated that
agents had attempted to use Walker to make a controlled purchase of
cocaine from "E," an alleged drug source in Florida, but that Whit-
more thwarted the plan by informing "E" about Walker's cooperation
with federal agents.
Whitmore challenges the two-point enhancement to his base
offense level for obstruction of justice. An obstruction of justice
adjustment is appropriate "[i]f the defendant willfully obstructed or
impeded, or attempted to obstruct or impede, the administration of
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justice during the investigation, prosecution, or sentencing of the
instant offense." United States Sentencing Guidelines Manual
("U.S.S.G.") § 3C1.1 (1996). Whether Whitmore's conduct amounted
to obstruction of justice is a legal question which is reviewed de novo.
See United States v. Saintil, 910 F.2d 1231, 1232 (4th Cir. 1990). The
district court's factual findings underlying this determination are
reviewed for clear error. United States v. Castner, 50 F.3d 1267, 1279
(4th Cir. 1995).
Whitmore first alleges that the government failed to meet its bur-
den of showing that his dissemination of the report and its contents
showed his intent to deflect responsibility for the charges against him.
The district court's findings that "E" was involved in the conspiracy
to which Whitmore pled guilty and that Whitmore called "E" to warn
him of Walker's cooperation with federal agents are not clearly erro-
neous. Whitmore admitted that he spoke to "E" about Walker's coop-
eration, and moreover, the district court expressly discredited
Whitmore's testimony that he called "E" for the innocent purpose of
communicating a benevolent message from Walker. A review of the
transcript of the phone conversations between Walker and "E" further
supports the district court's finding that "E" refused to come to South
Carolina to sell Walker cocaine based on his knowledge of Walker's
cooperation. Thus, we find no error in the district court's determina-
tion that Whitmore's conduct was obstructive and hampered the gov-
ernment's investigation of "E's" drug activities.
We are also unpersuaded by Whitmore's argument that even if he
interfered with the investigation of "E," the adjustment was inappro-
priate because such obstructive conduct did not occur "during the
investigation, prosecution, or sentencing of the instant offense." See
U.S.S.G. § 3C1.1 (1996). This court reviews questions involving legal
interpretations of the Guidelines de novo. United States v. Wessells,
936 F.2d 165, 168 (4th Cir. 1991). This court has held that the term
"instant offense" in § 3C1.1 includes a defendant's relevant conduct
as defined in the sentencing guidelines. See United States v. Self, 132
F.3d 1039, 1043-44 (4th Cir. 1997), cert. denied , ___ U.S. ___, 66
U.S.L.W. 41 (U.S. Apr. 27, 1998) (No. 97-8510). Moreover, applica-
tion of the adjustment is not limited to obstructive conduct directly
related to the offense of conviction so long as a sufficient nexus exists
between the two. See, e.g., United States v. Gacnik, 50 F.3d 848, 852-
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53 (10th Cir. 1995); United States v. Kim, 27 F.3d 947, 958 (3d Cir.
1994).
Whitmore pled guilty to conspiracy to possess and distribute
cocaine. In a conspiracy, relevant conduct includes all acts committed
by the defendant and others which are in furtherance of the conspir-
acy, reasonably foreseeable to the defendant, and within the scope of
the criminal activity the defendant agreed to undertake. See U.S.S.G.
§ 1B1.3(a) (1996). "E's" role as the alleged source of cocaine for the
distribution conspiracy charged in Whitmore's indictment makes "E"
a coconspirator, albeit unnamed and unindicted, whose conduct is
potentially attributable to Whitmore for sentencing purposes. Hence,
Whitmore's obstructive conduct hindered the government's investiga-
tion of the overarching conspiracy to which he pled guilty. See Self,
132 F.3d at 1043-44; Kim, 27 F.3d at 958. Accordingly, we find no
error in the district court's application of the obstruction of justice
enhancement.
Whitmore next asserts that the district court erred in denying an
adjustment for acceptance of responsibility. Absent extraordinary cir-
cumstances the acceptance of responsibility adjustment is not ordinar-
ily available to a defendant who obstructs justice. See U.S.S.G.
§ 3E1.1, comment. (n.4); United States v. Miller, 77 F.3d 71, 74 (4th
Cir. 1996). The district court made an express finding that Whitmore
did not admit the full scope of his drug activities and that he perjured
himself during the sentencing hearing for the purpose of limiting his
potential sentence. In light of these findings and the great deference
accorded to the district court's evaluation of a defendant's acceptance
of responsibility, see U.S.S.G. § 3E1.1, comment. (n.5), the district
court did not clearly err in denying Whitmore the adjustment. See
United States v. Cusack, 901 F.2d 29, 31 (4th Cir. 1990).
Whitmore further assigns error to the district court's refusal to
grant relief under the safety valve guideline, U.S.S.G. § 5C1.2 (1996),
based on his alleged cooperation with the government following his
arrest.* A defendant has the burden of proving that he qualifies for
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*The "safety valve" provision of § 5C1.2 provides for a sentence
reduction if the defendant satisfies five criteria. See 18 U.S.C. § 3553(f)
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application of the safety valve provision. See United States v. Beltran-
Ortiz, 91 F.3d 665, 669 (4th Cir. 1996). The district court's determi-
nation of whether Whitmore fulfilled the requirements of § 5C1.2 is
a question of fact reviewed for clear error. See United States v.
Daughtrey, 874 F.2d 213, 217 (4th Cir. 1989); United States v.
Rodriguez, 69 F.3d 136, 144 (7th Cir. 1995). Here, the government
asserted without challenge that Whitmore failed to offer a statement
about his charged conduct, and the district court made an express
finding that Whitmore was withholding information. Accordingly, the
district court did not clearly err in denying relief under the safety
valve provision of § 5C1.2.
Whitmore's final claim is that the district court erred in sentencing
him based on the crack cocaine guidelines because laboratory analysis
revealed that he failed to successfully convert into crack cocaine
130.92 grams of the 149.27 grams of cocaine attributed to him at sen-
tencing. The government has the burden of proving by a preponder-
ance of the evidence sentencing factors, including the type and
quantity of drugs for which a defendant should be held accountable.
See United States v. Estrada, 42 F.3d 228, 231 (4th Cir. 1994). This
court reviews the district court's findings on sentencing factors for
clear error. United States v. McDonald, 61 F.3d 248, 255 (4th Cir.
1995). Whitmore does not dispute that his intention was to sell crack
cocaine and that he represented the cocaine he sold as crack. Further,
he pled guilty to conspiracy to distribute cocaine base (crack), and at
his Rule 11 hearing admitted his involvement in a conspiracy to sell
crack cocaine. See United States v. Gilliam, 987 F.2d 1009, 1013 (4th
Cir. 1993) (recognizing government can meet its burden of establish-
ing sentencing factors based on defendant's admission as part of a
plea or during Rule 11 colloquy). Moreover, at least two circuits have
held that a defendant's "inept cooking ability" does not relieve him
of responsibility for the intended quantity and quality of drugs actu-
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(1994). At sentencing the parties stipulated that Whitmore satisfied the
first four requirements of the safety valve provision, but disputed
whether Whitmore had "truthfully provided to the Government all infor-
mation and evidence the defendant has concerning the offense or
offenses that were part of the same course of conduct or of a common
scheme or plan." U.S.S.G. § 5C1.2(5).
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ally seized. See United States v. Campbell, 61 F.3d 976, 983 (1st Cir.
1995) (quoting United States v. Youngpeter, 986 F.2d 349, 354 (10th
Cir. 1993)). Therefore, we find no error in the district court's applica-
tion of the crack cocaine guidelines.
Accordingly, we affirm Whitmore'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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