United States v. Young ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4377
CALVIN TYRONE YOUNG,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4422
ALVIN YOUNG, JR.,
Defendant-Appellant.
Appeals from the United States District Court
for the Middle District of North Carolina, at Salisbury.
N. Carlton Tilley, Jr., District Judge.
(CR-96-243-4-1)
Submitted: December 16, 1997
Decided: January 5, 1998
Before NIEMEYER, HAMILTON, and MOTZ, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Louis C. Allen, III, Federal Public Defender, Gregory Davis, Assis-
tant Federal Public Defender, Greensboro, North Carolina; Michael
A. Grace, MICHAEL A. GRACE, P.A., Winston-Salem, North Caro-
lina; Lisa S. Costner, Winston-Salem, North Carolina, for Appellants.
Walter C. Holton, Jr., United States Attorney, Paul A. Weinman,
Assistant United States Attorney, Winston-Salem, North Carolina, for
Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Appellants, brothers Alvin Young, Jr., and Calvin Young, were
convicted pursuant to their guilty pleas of one count of conspiracy to
distribute crack cocaine. In these consolidated appeals, both men
assert that the district court erred by not granting them a downward
adjustment for acceptance of responsibility under USSG § 3E1.1.* In
addition, Alvin Young challenges the district court's decision not to
classify him as a minor participant under USSG § 3B1.2(b), and Cal-
vin Young alleges that the district court erroneously classified him as
a career offender pursuant to USSG § 4B1.1. Finding no reversible
error, we affirm.
Appellants sold crack cocaine from their homes. Local law
enforcement personnel targeted Appellants for a sting operation.
Undercover agents and informants made nine controlled purchases of
crack from Calvin Young totaling approximately thirty-one grams.
Operatives made another controlled buy from Alvin Young totaling
approximately ninety-one grams. Alvin Young made at least two tele-
phone calls to arrange this last transaction, and some of the conversa-
tions were recorded.
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*United States Sentencing Guidelines Manual§ 3E1.1 (1996).
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Appellants contend that their base offense levels should be reduced
for acceptance of responsibility because they pled guilty and did not
challenge the drug amounts at trial. We disagree. Appellants bear the
burden of showing that they are entitled to the reduction, and the
reduction is only appropriate when the defendant has shown an affir-
mative acceptance of responsibility for his behavior. See United
States v. Harris, 882 F.2d 902, 906-07 (4th Cir. 1989). We find that
Appellants failed to meet this burden. Appellants refused to talk to the
probation officer about any drug transactions except those in which
they were caught "red-handed." Alvin Young even refused to discuss
the events that led to his arrest. Under the circumstances, we find that
the district court's decision to deny Appellants' request for a down-
ward adjustment was supported by the record and not clearly errone-
ous.
Alvin Young bears the burden of showing that he is entitled to a
reduction in his base offense level for being a minor participant, and
we will not reverse the district court's factual determination on this
issue unless it was clearly erroneous. United States v. Campbell, 935
F.2d 39, 46 (4th Cir. 1991). We find that the record amply supports
the district court's decision. While Alvin Young may have only par-
ticipated directly in one of the ten controlled buys, this transaction
accounted for the largest portion of the total drug sales, and Alvin
Young clearly played a major role. Moreover, the district court was
authorized to look at all of the relevant conduct and not just at the
offense of conviction. See United States v. Fells, 920 F.2d 1179,
1182-84 (4th Cir. 1990). Although the district court rejected a large
portion of the testimony concerning Appellants' drug activities, it
nevertheless found that Alvin Young was more involved in the drug
business than the one transaction suggested. As a result, we find that
Alvin Young failed to show that he was less culpable than other mem-
bers of the conspiracy.
We review the district court's classification of Calvin Young as a
career offender de novo. United States v. Johnson, 114 F.3d 435, 444
(4th Cir.), cert. denied, ___ U.S. ___, 66 U.S.L.W. 3262 (U.S. Oct.
6, 1997) (No. 97-5705). A defendant is a career offender if: (1) he
was at least eighteen years old at the time of the instant offense; (2)
the instant offense is a felony involving either a crime of violence or
a controlled substance; and (3) he has at least two prior felony convic-
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tions (i.e., punishable by more than one year in prison) of either a
crime of violence or a controlled substance. USSG§ 4B1.1. Calvin
Young only challenges the district court's determination that he satis-
fied the third element. The district court found that Calvin Young was
previously convicted in state court for assault with a deadly weapon
and assault on a female. At the time his convictions were sustained,
both crimes were punishable by more than one year in prison. In
1994, however, the North Carolina Legislature reclassified these and
other crimes and changed the maximum punishment for both crimes
to 150 days.
Calvin Young concedes that the operative date in applying USSG
§ 4B1.1 is the date the prior convictions were sustained rather than
the date of sentencing in the present case. See Johnson, 114 F.3d at
444-45. However, Calvin Young asserts that this creates two classes
of defendants (one whose convictions were sustained prior to the
1994 reclassification and another whose convictions were sustained
after) in violation of his equal protection rights. We disagree. This
court rejected a similar argument in United States v. Inglesi, 988 F.2d
500, 503 (4th Cir. 1993) (alleged disparity in the use of juvenile
records in calculating criminal history scores). We find that the sen-
tencing provision here has a rational basis and is not based on an arbi-
trary distinction. Moreover, as in Inglesi, Calvin Young failed to
produce any evidence of actual sentencing disparities caused by this
provision.
We therefore affirm Appellants' convictions and sentences. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
AFFIRMED
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