United States v. Washington, 4th Cir. (2003)
United States v. Washington, 4th Cir. (2003)
No. 02-4809
COUNSEL
Coming B. Gibbs, Jr., Charleston, South Carolina, for Appellant. J.
Strom Thurmond, Jr., United States Attorney, Robert H. Bickerton,
Assistant United States Attorney, Charleston, South Carolina, for
Appellee.
OPINION
PER CURIAM:
Calvin Washington appeals his convictions and sentence for conspiracy to possess with intent to distribute and to distribute cocaine
and cocaine base; conspiracy to import cocaine into the United States;
and participation in a money laundering conspiracy. Finding no
reversible error, we affirm.
I.
Washington first claims that the district court clearly erred in
imposing a two-point enhancement for obstruction of justice pursuant
to U.S. Sentencing Guidelines Manual ("USSG") 3C1.1 (1998). The
application notes to this section specifically state that the enhancement applies if the defendant engaged in conduct consisting of
"threatening, intimidating, or otherwise unlawfully influencing a codefendant, witness, or juror, directly or indirectly, or attempting to do
so." 3C1.1, comment. (n.4(a)). This court reviews the district
courts findings for clear error. United States v. Puckett, 61 F.3d
1092, 1095 (4th Cir. 1995); United States v. Daughtrey, 874 F.2d 213,
217 (4th Cir. 1989).
The probation officer recommended an enhancement for obstruction of justice based on the grand jury testimony of Rosemary
Thomas, the sister-in-law of one of Washingtons co-defendants.
Thomas testified that Washington threatened her, told her to get out
of town, and offered to pay for her to remain out of town as long as
necessary. The district court overruled Washingtons objection to the
enhancement based on its determination that Thomas was a credible
witness. The district courts assessment of the credibility of witnesses
is not reviewable on appeal. United States v. Saunders, 886 F.2d 56,
60 (4th Cir. 1989).
Washingtons specific contention on appeal, however, is that the
district court failed to consider the impact of a stipulation in the plea
agreement that provided that there was no evidence "warranting an
upward adjustment for obstructing or impeding the administration of
justice." Because the plea agreement clearly provided that this stipulation was not binding on the district court or the United States Probation Office and there is no indication in the record that the district
court was unaware of the stipulation, we find this claim to be without
merit.
II.
Washington next contends that the district court clearly erred in
denying a downward adjustment for acceptance of responsibility pursuant to USSG 3E1.1. A district courts decision to deny a reduction
in the offense level for acceptance of responsibility is reviewed for
clear error. United States v. Pauley, 289 F.3d 254, 261 (4th Cir.
2002), cert. denied, 123 S. Ct. 1007 (2003). Washington bore the burden of showing by a preponderance of the evidence that he was entitled to the reduction. United States v. Harris, 882 F.2d 902, 907 (4th
Cir. 1989). His guilty plea did not automatically entitle him to the
reduction. Id. at 905.
The district court denied the reduction based on its finding that
Washington provided an implausible account of his involvement in
the conspiracy. Washington fails to show that this finding is clearly
erroneous. Moreover, Washington received an adjustment for obstruction of justice; in all but extraordinary cases, a defendant who
receives such an adjustment under USSG 3C1.1 is ineligible for a
reduction for acceptance of responsibility. See USSG 3E1.1, comment. (n.4).
III.
Washington also claims that the plea agreement obligated the Government to move for a downward departure based upon his substantial
assistance. He contends that the district court erred in refusing to
order the Government to move for a departure. Where a defendant
alleges his assistance to the Government entitled him to a downward
departure, this court reviews the claim for clear error. United States
v. Conner, 930 F.2d 1073, 1076-77 (4th Cir. 1991). Generally, a
departure for substantial assistance may not be made absent a motion
by the Government, United States v. Francois, 889 F.2d 1341, 1343
(4th Cir. 1989), unless the defendant makes a substantial showing that