UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 98-4144

REGINALD BERNARD WHITMORE,

Defendant-Appellant.

Appeal from the United States District Court

for the District of South Carolina, at Columbia.

Dennis W. Shedd, District Judge.

(CR-97-367-DWS)

Submitted: October 20, 1998

Decided: November 16, 1998

Before WIDENER, NIEMEYER, and LUTTIG, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Debra Y. Chapman, Columbia, South Carolina, for Appellant. J. Rene

Josey, United States Attorney, Jane B. Taylor, Assistant United States

Attorney, Columbia, South 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Unpublished opinions are not binding precedent in this circuit.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:

Reginald Whitmore appeals from the district court's judgment sentencing him upon his conviction for conspiracy to possess with intent

to distribute cocaine base in violation of 21 U.S.C.§ 846 (1994). For

the reasons set forth below, we affirm.

In April 1997, Reginald Whitmore, Richard Walker, and two other

individuals were indicted in the District of South Carolina on conspiracy and drug distribution charges. Following his indictment, Walker

provided law enforcement agents with information about the drug distribution offenses charged in the indictment. Government agents prepared a written report ("DEA 6") summarizing an interview

conducted with Walker. This report was later turned over to Whitmore and the other codefendants as part of the discovery process in

their criminal cases. Whitmore ultimately pled guilty to Count One of

the indictment charging him with conspiracy to distribute and possess

cocaine.

At sentencing the government presented the testimony of Drug

Enforcement Administration ("DEA") agent Cal Thomas. Thomas

testified that after Walker's arrest, he received phone calls from

Walker and some of his relatives concerned about the distribution of

the DEA 6 in the community. Although Thomas never confirmed that

the DEA 6 was being distributed or that Whitmore was the person

responsible, Thomas testified that concerned individuals relayed specific information to him that they would not have known about unless

the DEA 6 was being disseminated, and that at least one person told

him that Whitmore had distributed copies. Thomas further stated that

agents had attempted to use Walker to make a controlled purchase of

cocaine from "E," an alleged drug source in Florida, but that Whitmore thwarted the plan by informing "E" about Walker's cooperation

with federal agents.

Whitmore challenges the two-point enhancement to his base

offense level for obstruction of justice. An obstruction of justice

adjustment is appropriate "[i]f the defendant willfully obstructed or

impeded, or attempted to obstruct or impede, the administration of

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justice during the investigation, prosecution, or sentencing of the

instant offense." United States Sentencing Guidelines Manual

("U.S.S.G.") § 3C1.1 (1996). Whether Whitmore's conduct amounted

to obstruction of justice is a legal question which is reviewed de novo.

See United States v. Saintil, 910 F.2d 1231, 1232 (4th Cir. 1990). The

district court's factual findings underlying this determination are

reviewed for clear error. United States v. Castner, 50 F.3d 1267, 1279

(4th Cir. 1995).

Whitmore first alleges that the government failed to meet its burden of showing that his dissemination of the report and its contents

showed his intent to deflect responsibility for the charges against him.

The district court's findings that "E" was involved in the conspiracy

to which Whitmore pled guilty and that Whitmore called "E" to warn

him of Walker's cooperation with federal agents are not clearly erroneous. Whitmore admitted that he spoke to "E" about Walker's cooperation, and moreover, the district court expressly discredited

Whitmore's testimony that he called "E" for the innocent purpose of

communicating a benevolent message from Walker. A review of the

transcript of the phone conversations between Walker and "E" further

supports the district court's finding that "E" refused to come to South

Carolina to sell Walker cocaine based on his knowledge of Walker's

cooperation. Thus, we find no error in the district court's determination that Whitmore's conduct was obstructive and hampered the government's investigation of "E's" drug activities.

We are also unpersuaded by Whitmore's argument that even if he

interfered with the investigation of "E," the adjustment was inappropriate because such obstructive conduct did not occur "during the

investigation, prosecution, or sentencing of the instant offense." See

U.S.S.G. § 3C1.1 (1996). This court reviews questions involving legal

interpretations of the Guidelines de novo. United States v. Wessells,

936 F.2d 165, 168 (4th Cir. 1991). This court has held that the term

"instant offense" in § 3C1.1 includes a defendant's relevant conduct

as defined in the sentencing guidelines. See United States v. Self, 132

F.3d 1039, 1043-44 (4th Cir. 1997), cert. denied , ___ U.S. ___, 66

U.S.L.W. 41 (U.S. Apr. 27, 1998) (No. 97-8510). Moreover, application of the adjustment is not limited to obstructive conduct directly

related to the offense of conviction so long as a sufficient nexus exists

between the two. See, e.g., United States v. Gacnik, 50 F.3d 848, 852-

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53 (10th Cir. 1995); United States v. Kim, 27 F.3d 947, 958 (3d Cir.

1994).

Whitmore pled guilty to conspiracy to possess and distribute

cocaine. In a conspiracy, relevant conduct includes all acts committed

by the defendant and others which are in furtherance of the conspiracy, reasonably foreseeable to the defendant, and within the scope of

the criminal activity the defendant agreed to undertake. See U.S.S.G.

§ 1B1.3(a) (1996). "E's" role as the alleged source of cocaine for the

distribution conspiracy charged in Whitmore's indictment makes "E"

a coconspirator, albeit unnamed and unindicted, whose conduct is

potentially attributable to Whitmore for sentencing purposes. Hence,

Whitmore's obstructive conduct hindered the government's investigation of the overarching conspiracy to which he pled guilty. See Self,

132 F.3d at 1043-44; Kim, 27 F.3d at 958. Accordingly, we find no

error in the district court's application of the obstruction of justice

enhancement.

Whitmore next asserts that the district court erred in denying an

adjustment for acceptance of responsibility. Absent extraordinary circumstances the acceptance of responsibility adjustment is not ordinarily available to a defendant who obstructs justice. See U.S.S.G.

§ 3E1.1, comment. (n.4); United States v. Miller, 77 F.3d 71, 74 (4th

Cir. 1996). The district court made an express finding that Whitmore

did not admit the full scope of his drug activities and that he perjured

himself during the sentencing hearing for the purpose of limiting his

potential sentence. In light of these findings and the great deference

accorded to the district court's evaluation of a defendant's acceptance

of responsibility, see U.S.S.G. § 3E1.1, comment. (n.5), the district

court did not clearly err in denying Whitmore the adjustment. See

United States v. Cusack, 901 F.2d 29, 31 (4th Cir. 1990).

Whitmore further assigns error to the district court's refusal to

grant relief under the safety valve guideline, U.S.S.G. § 5C1.2 (1996),

based on his alleged cooperation with the government following his

arrest.* A defendant has the burden of proving that he qualifies for

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*The "safety valve" provision of § 5C1.2 provides for a sentence

reduction if the defendant satisfies five criteria. See 18 U.S.C. § 3553(f)

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application of the safety valve provision. See United States v. BeltranOrtiz, 91 F.3d 665, 669 (4th Cir. 1996). The district court's determination of whether Whitmore fulfilled the requirements of § 5C1.2 is

a question of fact reviewed for clear error. See United States v.

Daughtrey, 874 F.2d 213, 217 (4th Cir. 1989); United States v.

Rodriguez, 69 F.3d 136, 144 (7th Cir. 1995). Here, the government

asserted without challenge that Whitmore failed to offer a statement

about his charged conduct, and the district court made an express

finding that Whitmore was withholding information. Accordingly, the

district court did not clearly err in denying relief under the safety

valve provision of § 5C1.2.

Whitmore's final claim is that the district court erred in sentencing

him based on the crack cocaine guidelines because laboratory analysis

revealed that he failed to successfully convert into crack cocaine

130.92 grams of the 149.27 grams of cocaine attributed to him at sentencing. The government has the burden of proving by a preponderance of the evidence sentencing factors, including the type and

quantity of drugs for which a defendant should be held accountable.

See United States v. Estrada, 42 F.3d 228, 231 (4th Cir. 1994). This

court reviews the district court's findings on sentencing factors for

clear error. United States v. McDonald, 61 F.3d 248, 255 (4th Cir.

1995). Whitmore does not dispute that his intention was to sell crack

cocaine and that he represented the cocaine he sold as crack. Further,

he pled guilty to conspiracy to distribute cocaine base (crack), and at

his Rule 11 hearing admitted his involvement in a conspiracy to sell

crack cocaine. See United States v. Gilliam, 987 F.2d 1009, 1013 (4th

Cir. 1993) (recognizing government can meet its burden of establishing sentencing factors based on defendant's admission as part of a

plea or during Rule 11 colloquy). Moreover, at least two circuits have

held that a defendant's "inept cooking ability" does not relieve him

of responsibility for the intended quantity and quality of drugs actu-

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(1994). At sentencing the parties stipulated that Whitmore satisfied the

first four requirements of the safety valve provision, but disputed

whether Whitmore had "truthfully provided to the Government all information and evidence the defendant has concerning the offense or

offenses that were part of the same course of conduct or of a common

scheme or plan." U.S.S.G. § 5C1.2(5).

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ally seized. See United States v. Campbell, 61 F.3d 976, 983 (1st Cir.

1995) (quoting United States v. Youngpeter, 986 F.2d 349, 354 (10th

Cir. 1993)). Therefore, we find no error in the district court's application of the crack cocaine guidelines.

Accordingly, we affirm Whitmore's sentence. 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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