UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 94-5884

ELVIN FLORIS, a/k/a Elliott Thomas,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of North Carolina, at Greenville.

Terrence W. Boyle, District Judge.

(CR-93-62)

Submitted: February 7, 1996

Decided: February 29, 1996

Before MURNAGHAN and WILLIAMS, Circuit Judges, and

PHILLIPS, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Rudolph A. Ashton, III, SUMRELL, SUGG, CARMICHAEL &

ASHTON, P.A., New Bern, North Carolina, for Appellant. Janice

McKenzie Cole, United States Attorney, J. Douglas McCullough,

Assistant United States Attorney, Raleigh, North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Elvin Floris pled guilty to one count of distribution of crack

cocaine, 21 U.S.C.A. § 841 (West 1981 & Supp. 1995). His plea

agreement contained a stipulation, not binding on the district court,

that his relevant conduct, USSG § 1B1.3,1 was 3.1 grams of crack, the

amount distributed in the count of conviction. At his sentencing hearing, the district court determined that Floris was an organizer or

leader in a crack conspiracy, USSG § 3B1.1(a), that his relevant conduct included all the crack sold by the other members of the conspiracy, USSG § 2D1.1, and that he had not accepted responsibility for

his offense, USSG § 3E1.1. Floris was sentenced to a term of 240

months. He appeals his sentence, contending that the district court

erred in considering conduct outside that stipulated in the plea agreement, that the court made inadequate findings concerning the drug

amount, and that the court clearly erred in finding that he was a leader

and that he had not accepted responsibility. We affirm.

The record discloses that the probation officer initially received

information from the government relating only to the controlled buy

which was the basis for the count of conviction. The probation officer

then sought additional information about the offense and was provided with investigative documents which included statements from

cooperating witnesses and the debriefing of co-conspirator Valerie

Gibbs. In the presentence report, the probation officer recommended

that Floris be held accountable to 6.4 kilograms of crack.

Floris objected to the consideration of any amounts beyond the 3.1

grams of crack stipulated in the plea agreement, and suggested that

Gibbs was an unreliable source of information. At the sentencing

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1 United States Sentencing Commission, Guidelines Manual (Nov.

1995).

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hearing, Floris argued that the district court was bound by the stipulation; he presented no evidence. The district court determined that the

plea agreement had not been violated by the probation officer's acquisition of further information about the offense and that Floris benefitted from the plea agreement by having a lower statutory maximum

sentence than would apply had he been charged with conspiracy. The

court found that Floris was responsible for at least 6.4 kilograms of

crack as recommended by the probation officer, and that Floris had

not accepted responsibility because he refused to admit the full scope

of his involvement in the offense.

After hearing Floris's exculpatory personal statement, the district

court asked the probation officer what evidence was available concerning his role in the conspiracy. The probation officer informed the

court that Floris had come from New York to North Carolina in 1990

with Leonard Normil (a/k/a/ Colin Courtney Atwell) 2 to sell crack.

Eight known individuals sold crack for them, a number of whom

cooperated with authorities, including Gibbs. Floris stored his crack

at the home of one of them. In 1991, Floris pled no contest in state

court to a cocaine charge and was given a suspended sentence. In

1992 and 1993, Floris, Atwell, and Henderson were distributing significant amounts of crack daily to others for sale on the street. On the

basis of this information, the district court found that Floris's role in

the conspiracy was that of a leader and organizer and gave him a fourlevel adjustment.

First, we find that the district court did not err in considering information outside the stipulation. Under USSG § 6B1.4(d), and by the

terms of the plea agreement, the stipulation was not binding on the

court. The sentencing court may consider any relevant and reliable

information. USSG § 6A1.3(a); United States v. Jones, 31 F.3d 1304,

1316 (4th Cir. 1994). A defendant who contests information in the

presentence report has the burden of showing that it is inaccurate or

unreliable. United States v. Terry, 916 F.2d 157, 162 (4th Cir. 1990).

Floris did not attempt to meet this burden, choosing instead to rely on

the stipulation. The government did not ask the court to attribute a

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2 David Henderson was identified in the presentence report as the third

organizer and leader of the offense; he also came from New York in

1990.

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higher amount of crack to Floris, and it did not violate the plea agreement by providing information requested by the probation officer or

by answering the district court's questions concerning the scope of

relevant conduct for a defendant involved in a conspiracy.

In the absence of any evidence to the contrary, the district court's

acceptance of the recommended findings contained in the presentence

report concerning the amount of crack for which Floris was responsible constituted a clear and adequate finding. See United States v.

Walker, 29 F.3d 908, 911-12 (4th Cir. 1994). The court did not clearly

err in finding that Floris had not accepted responsibility; he disavowed any involvement beyond the count of conviction, thus denying relevant conduct which the court had determined to be true. USSG

§ 3E1.1, comment. (n.1).

Finally, the district court has the latitude to make findings different

from those recommended in the presentence report, even on a matter

to which there has been no objection. The district court here exercised

its discretion to inquire into Floris's role in the offense. Considering

the information before the court, we cannot say that the finding that

Floris was a leader and organizer was clearly erroneous.

The sentence imposed by 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.

AFFIRMED

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