United States v. McIntee

76 F. App'x 146

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 18, 2003
• Docket: No. 03-30145; D.C. No. CR-02-00009-DWN-01
• Status: Published

Opinion

MEMORANDUM

**

Robert Steven Melntee appeals the sentence imposed following his guilty plea to one count of conspiracy to distribute a controlled substance (21 U.S.C. §§ 841(b)(1)(A) and 846) and forfeiture (21 U.S.C. § 853).

Melntee contends that the district court violated the terms of his proffer agreement and U.S.S.G. § 1B1.8 by considering and relying on information obtained pursuant to Mclntee’s cooperation with the government. Melntee specifically contends that the district court used this information in applying a firearm enhancement under U.S.S.G. § 2D1.1, in not departing further downward under U.S.S.G. § 5K1.1, and in imposing a sentence at the high end of the applicable guideline range.

Mclntee’s contention regarding the firearm enhancement is incorrect. Although the district court disregarded a (non-binding) recommendation in the plea agreement against application of the firearm enhancement, the factual basis for the enhancement was a gun discovered by agents during a search of Mclntee’s residence, not information provided by Melntee in debriefing. To the extent that the district court considered covered information in not departing further downward or in imposing a sentence at the high end of the guideline range, such consideration did not violate either the proffer agreement or § 1B1.8, both of which only prohibit use of the information in the determination of the applicable guideline range. Neither the proffer agreement nor § 1B1.8 prohibits use of the information in imposing a sentence within the applicable guideline range or in determining the extent of any downward departure. The sentence is therefore

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.