United States v. Locklear

Opinion

Vacated by Supreme Court, January 24, 2005

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 03-4495

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

MELVIN LOCKLEAR,

Defendant - Appellant.

No. 03-4505

Appeals from the United States District Court for the Eastern District of North Carolina, at Wilmington. Malcolm J. Howard, District Judge. (CR-02-126)

Submitted: April 23, 2004 Decided: May 7, 2004

Before WILKINSON, NIEMEYER, and MOTZ, Circuit Judges. No. 03-4495, dismissed, and No. 03-4505, affirmed by unpublished per curiam opinion.

Thomas P. McNamara, Federal Public Defender, G. Alan DuBois, Assistant Federal Public Defender, Jane E. Pearce, Research and Writing Attorney, Raleigh, North Carolina, for Appellant. Frank D. Whitney, United States Attorney, Anne M. Hayes, Christine Witcover Dean, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c).

- 2 - PER CURIAM:

In No. 03-4505, Melvin Locklear appeals from the judgment

of the district court convicting him of one count of conspiracy to

distribute cocaine base and two counts of distribution of cocaine

base, in violation of 21 U.S.C. §§ 841, 846 (2000), and sentencing

him to 235 months imprisonment. Finding no error, we affirm.

Locklear claims that the district court erred by refusing

to apply a two-level downward adjustment to his offense level based

on his alleged minor role in the offense. See U.S. Sentencing

Guidelines Manual § 3B1.2 (b) (2002). We review a district court’s

determination regarding a defendant’s role in the offense for clear

error. United States v. Daughtrey, 874 F.2d 213, 218 (4th Cir.

1989). Our review of the record does not support Locklear’s claim.

Locklear’s cousin, the head of the drug operation, directed an

undercover agent to Locklear on two occasions to facilitate illegal

narcotics transactions. Locklear advised the agent that he was the

one to do business with. Moreover, Locklear demonstrated the

ability to cook large quantities of cocaine into crack cocaine and

did so for the agent. Finally, Locklear’s cousin indicated that

Locklear had access to the narcotics and was responsible for

conducting business in his absence. Given this evidence, it was

not clear error for the district court to overrule Locklear’s

objection to the presentence investigation report.

We affirm the judgment of the district court with respect

to No. 03-4505. Because Locklear consents to the Government’s motion to dismiss No. 03-4495, we dismiss that appeal. 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.

No. 03-4495, DISMISSED; No. 03-4505, AFFIRMED

- 4 -