Terrell v. Univ of North Texas

• Court: Court of Appeals for the Fifth Circuit
• Decided: September 11, 2000
• Docket: 99-40771
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-40768 (Summary Calendar)

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CURLEY ADAMS, JR.,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Eastern District of Texas (95-CR-2-1) - - - - - - - - - - March 23, 2000

Before POLITZ, JONES, and WIENER, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Curley Adams, Jr., appeals his sentence

for his guilty-plea conviction of two counts of cocaine base with

intent to distribute, and one count of conspiracy to possess with

intent to distribute, cocaine base, in violation of 21 U.S.C. §§

841(a)(1) and 846.

For the first time on appeal, Adams contends that the

government failed to prove that the substance involved was cocaine

base, or “crack” cocaine. This claim is thus reviewable for plain

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. error only. See United States v. Calverley, 37 F.3d 160, 162-64

(5th Cir. 1994); United States v. Olano, 507 U.S. 725, 732 (1993).

Adams’s contention is frivolous because the factual basis recited

in support of Adams’s guilty plea at his plea hearing–-facts with

which Adams agreed under oath--referred to “crack” cocaine.

Adams contends that the district court clearly erred in

enhancing his base offense level for obstruction of justice,

pursuant to U.S.S.G. § 3C1.1, based on Adams having lied to the

Probation Office about his ownership of his home; Adams’s argument

is that the court should have made a finding on the “materiality”

of this lie. Adams admits that false statements about financial

assets may be “material” with respect to a defendant’s ability to

pay a fine, see United States v. Milton, 147 F.3d 414, 422 (5th

Cir. 1998); and he has not shown that his lie was not material to

his ability to pay a fine in this case. The district court did not

clearly err in imposing the § 3C1.1 enhancement. See United States

v. Upton, 91 F.3d 677, 687 (5th Cir. 1996).

Adams contends that the district erred in applying a two-level

increase pursuant to § 3B1.1(c) based on his “aggravating role” in

the offense, on the ground that he was a manager or supervisor of

his two codefendants. The PSR reflects that on several occasions

a confidential informant (“CI”) called Adams about buying “crack”

cocaine at the pool hall owned by Adams, and that, when the CI

arrived at the pool hall, one of Adams’s codefendants would appear

to conduct the drug transaction. The information bore “sufficient

indicia of reliability” to support the offense-level enhancement.

2 See § 6A1.3. No clear error is apparent. United States v.

Musquiz, 45 F.3d 927, 932-33 (5th Cir. 1995).

Adams maintains that the district court erred by denying him

a § 3E1.1 reduction for acceptance of responsibility for the sole

reason that he had received an enhancement for obstruction of

justice. Adams has failed to show that he was entitled to a §

3E1.1 reduction. See United States v. Cano-Guel, 167 F.3d 900, 906

(5th Cir. 1999) (the mere entry of a guilty plea does not entitle

a defendant to a § 3E1.1 reduction). He also has not demonstrated

that his case is so “extraordinary” that both the § 3E1.1 and 3C1.1

adjustments were applicable. See § 3E1.1, comment. (n.4)

(defendant may receive both § 3E1.1 and § 3C1.1 adjustments only in

“extraordinary cases”).

Finally, Adams contends that the district court, in

calculating the quantity of cocaine base for sentencing purposes,

improperly relied on the allegedly unreliable testimony of the CI.

Contrary to Adams’s assertion, the CI’s testimony was not

contradictory; he was merely uncertain about the exact quantity of

crack cocaine he bought from Adams. The CI’s testimony was more

than sufficiently clear to permit the district court to approximate

the amount of cocaine base Adams sold to the CI. See § 2D1.1,

comment. (n.12).

AFFIRMED.