946 F2d 888 United States v. Walters F

946 F.2d 888

UNITED STATES of America, Plaintiff-Appellee,
v.
Shelley Ferguson WALTERS, a/k/a Shelley F. Wallace,
Defendant-Appellant.

No. 90-5724.

United States Court of Appeals, Fourth Circuit.

Submitted Sept. 30, 1991.
Decided Oct. 17, 1991.

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.

Appeal from the United States District Court for the District of South Carolina, at Rock Hill. Clyde H. Hamilton, District Judge. (CR-89-214)

Parks N. Small, Federal Public Defender, Columbia, S.C., for appellant.

E. Bart Daniel, United States Attorney, Alfred W. Bethea, Jr., Assistant United States Attorney, Florence, S.C., for appellee.

D.S.C.

AFFIRMED.

Before K.K. HALL and PHILLIPS, Circuit Judges, and BUTZNER, Senior Circuit Judge.

OPINION

PER CURIAM:


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1

Shelley Ferguson Walters was convicted by a jury of conspiracy to distribute more than five kilograms of cocaine (21 U.S.C. §§ 846 and 2 (1988)). She appeals the sentence she received on the grounds that the district court erred in finding that the offense level was not contested and in finding that there was sufficient evidence to support an offense level of thirty. We affirm.

2

Walters made no written objection to the probation officer's report, which recommended an offense level of thirty-two because of Walters's participation in a conspiracy involving more than five kilograms of cocaine. At the sentencing hearing, Walters' attorney objected for the first time to the amount of cocaine attributed to her and to the offense level, without offering any evidence to support a different finding. The government, however, stated that because Walters had a minor role in the conspiracy the amount properly attributable to her was "a little less than five kilograms," and an offense level of thirty was appropriate.

3

When asked by the district court to comment, Walters' attorney responded, "We concur with the government as to it being under five kilos, Your Honor, which would reduce the base level to thirty." The district court then found a base offense level of thirty, gave Walters a two-level reduction for minor role and adopted the rest of the presentence report as uncontroverted. When she was addressed directly, Walters engaged in a long discussion with the district court about whether she was guilty of conspiracy. She did not challenge the amount of cocaine for which she was being held accountable or the offense level.

4

On these facts, we find that no objection was made to the district court's finding that the correct base level was thirty. We do not reach the second issue raised by Walters; however, a review of the evidence reveals no plain error. Fed.R.App.P. 52(b).

5

The judgment of the district court is therefore affirmed. 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.

6

AFFIRMED.