United States v. Ray ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5935
JOSEPH ALVIN RAY,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of North Carolina, at Winston-Salem.
Frank W. Bullock, Jr., Chief District Judge.
(CR-95-89)
Submitted: September 30, 1996
Decided: November 15, 1996
Before WILKINS, HAMILTON, and MICHAEL, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
David B. Freedman, WHITE & CRUMPLER, Winston-Salem, North
Carolina, for Appellant. Walter C. Holton, Jr., United States Attorney,
Harry L. Hobgood, Assistant United States Attorney, Greensboro,
North Carolina, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Joseph Alvin Ray appeals his 180-month term of imprisonment
after pleading guilty to one count of conspiracy to possess with intent
to distribute cocaine, 21 U.S.C. §§ 846, 841(b)(1)(B) (1994). Ray's
formal brief raised three issues, and his supplemental pro se brief
raised two additional issues. Finding no merit in Ray's claims, we
affirm.
According to testimony at Ray's sentencing hearing, Ray twice
arranged cocaine purchases in New York City. Ray testified he
arranged two one-kilogram purchases for his brother, but Government
witnesses testified he also arranged a half-kilogram purchase for him-
self. Ray did not dispute that he arranged the purchases and provided
associates with money to make the purchases. Further, Ray admitted
he carried a .38 caliber pistol during the drug transactions, but
claimed he carried the weapon to protect large sums of money he car-
ried from rental collections.
At sentencing, the district court increased Ray's offense level by
four under USSG § 3B1.1(a) (Nov. 1994) for being an organizer or
leader of criminal activity. Additionally, the court increased Ray's
offense level by two under § 2D1.1(b)(1) (Nov. 1994) for possessing
a dangerous weapon during the commission of a drug crime. Finally,
the district court refused to reduce Ray's offense level by two for
acceptance of responsibility under § 3E1.1(a) (Nov. 1994) because it
found that he failed to accept responsibility for the half-kilogram of
cocaine.* On appeal, Ray challenges each of these decisions. Addi-
tionally, he claims the district court failed to make a specific factual
finding concerning the amount of cocaine attributable to him, and that
the Government breached its plea agreement by failing to debrief him.
The district court did not clearly err in any of its decisions. See
United States v. Hyppolite, 65 F.3d 1151, 1159 (4th Cir. 1995), cert.
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*However, the district court also refused to include the half-kilogram
of cocaine in calculating Ray's drug amount because it found the Gov-
ernment's witnesses were not credible.
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denied, ___ U.S. ___, 64 U.S.L.W. 3708 (U.S., Apr. 22, 1996) (No.
95-8395); United States v. Daughtrey, 874 F.2d 213 (4th Cir. 1989).
First, Ray admitted that he arranged each of the purchases. In doing
so, he "exercise[d] . . . decision making authority" and had a signifi-
cant "degree of participation in planning or organizing the offense."
USSG § 3B1.1(a), comment. (n.4).
Second, Ray admitted that he carried the .38 caliber pistol with him
during the drug transactions. Government witnesses also testified that
he had the pistol during the transactions. Although he claimed he car-
ried the gun to protect the large sums of money he collected from
renters, Ray did not establish that it was clearly improbable the
weapon also was connected to the drug transactions. See United
States v. Calhoun, 49 F.3d 231 (6th Cir. 1995).
Third, Ray did not establish by a preponderance of the evidence
that he did not arrange a half-kilogram purchase of cocaine for him-
self. See United States v. Gordon, 895 F.2d 932 (4th Cir.), cert.
denied, 498 U.S. 846 (1990). The district court's refusal to attribute
the half-kilogram to Ray did not necessitate a finding that he accepted
responsibility for all his drug activity on the basis that the half-
kilogram did not exist. Rather, the district court merely decided that
neither Ray nor the Government established the existence or nonexis-
tence of the half-kilogram by a preponderance of the evidence. Thus,
the court did not err by refusing to reduce Ray's offense level for
acceptance of responsibility.
Also without merit is Ray's argument that the district court erred
by failing to make a specific factual finding concerning the amount
of cocaine attributable to Ray because the district court expressly
adopted the findings in the presentence report. Such action is permis-
sible. United States v. Walker, 29 F.3d 908, 911 (4th Cir. 1994).
Finally, Ray claims the Government breached its plea agreement
with him by failing to debrief him. Ray's plea agreement stated that
the Government would recommend that he be sentenced at the low
end of the guideline range "if the defendant, upon debriefing by gov-
ernment agents, is completely forthright and truthful regarding the
offense charged."
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The Government's failure to debrief a defendant may result in a
breach of a plea agreement. United States v. Beltran-Ortiz, 91 F.3d
665, 668-69. (4th Cir. 1996). However, the Government's failure in
this case is distinguishable from Beltran-Ortiz . First, in Beltran-Ortiz,
the Government's breach was substantial because debriefing may
have rendered the defendant eligible for a lower sentence under
USSG § 5C1.2, the "safety valve provision." Id. Ray, though, makes
no showing that he may have been eligible for a lower sentence had
he been debriefed. Second, as promised, the Government recom-
mended that Ray receive a sentence at the low end of the guideline
range. Thus, the Government's failure to debrief Ray did not consti-
tute more than harmless error.
Accordingly, we affirm Ray's sentence. Additionally, we deny
Ray's motion for oral argument and grant his motion to file a pro se
supplemental brief. We grant Appellee's motion to submit the case on
the briefs and dispense with oral argument because the facts and legal
contentions are adequately presented in the material before the court
and argument would not aid the decisional process.
AFFIRMED
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