United States v. Carl R. McCammon

Opinion

___________

No. 96-2463

___________

United States of America, *

*

Appellee, * * Appeal from the United States v. * District Court for the * Western District of Arkansas.

Carl Richard McCammon, * * [UNPUBLISHED]

Appellant. *

__________

Submitted: October 24, 1996

Filed: October 31, 1996

__________

Before BOWMAN, MAGILL, and LOKEN, Circuit Judges.

___________

PER CURIAM.

In this direct criminal appeal, Carl Richard McCammon challenges his 30-month sentence of imprisonment imposed by the district court1 after McCammon pleaded guilty to a drug charge. McCammon argues that he is entitled to a downward departure based on his substantial assistance. He also argues that statements he made to an investigating customs officer should not have been used against him in calculating the amount of drugs attributable to him.

The district court properly declined to grant McCammon a substantialassistance downward departure absent a motion from the government pursuant to U.S.S.G. § 5K1.1. See United States v.

1 The Honorable Jimm Larry Hendren, United States District Judge for the Western District of Arkansas.

Johnigan, 90 F.3d 1332, 1338 (8th Cir. 1996). We conclude the district court did not clearly err in determining that, at the time McCammon made the self-incriminating statements to the investigating officer, no cooperation agreement existed precluding the use of such statements against McCammon. See U.S.S.G. § 1B1.8(a), (b)(1); United States v. Sheets, 65 F.3d 752, 753 (8th Cir. 1995) (standard of review); cf. White v. United States, 998 F.2d 572, 574 (8th Cir. 1993) (no error in using drug quantities disclosed eighteen months prior to plea agreement absent cooperation agreement).

Accordingly, we affirm the judgment of the district court.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.