UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 95-5044

GARY LYNN HARDISON,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 95-5100

GALE LEE OLIVER, JR.,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 95-5262

GARY LYNN HARDISON,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 95-5263

GARY LYNN HARDISON,

Defendant-Appellant.
Appeals from the United States District Court

for the Western District of North Carolina, at Charlotte.

Graham C. Mullen, District Judge.

(CR-93-235-MU)

Argued: September 24, 1996

Decided: January 27, 1997

Before RUSSELL, WIDENER, and HALL, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Norman Butler, LAW OFFICE OF HAROLD BENDER,

Charlotte, North Carolina, for Appellants. Robert James Conrad, Jr.,

Assistant United States Attorney, Charlotte, North Carolina, for

Appellee. ON BRIEF: Milton C. Grimes, Santa Ana, California, for

Appellant Oliver. Mark T. Calloway, United States Attorney,

Gretchen C.F. Shappert, Assistant United States Attorney, Charlotte,

North Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

This appeal arises from the guilty pleas and convictions of defendants Gary Lynn Hardison and Gale Lee Oliver for violations of 21

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U.S.C. §§ 846, 841(a)(1) and Title 18 U.S.C.§ 2 after CharlotteMecklenburg Police, acting with an informer in an October 3, 1994

sting operation, arrested them in a hotel room with seven kilograms

of cocaine. The pleas of guilty were subject to appeal of the denial

of their suppression motions with respect to the evidence obtained at

the time of their arrest. There are two issues on appeal. First, both

defendants contend that the district court's denial of their motion to

suppress the fruits of a warrantless search violated their Fourth

Amendment rights. Second, Hardison claims that at his sentencing

hearing the court erred by improperly relying on hearsay testimony

when it denied his motion for a downward departure pursuant to

U.S.S.G. § 5C1.2, the first offender exception.

We affirm.

I.

Officer Saucic of the Charlotte-Mecklenburg Police Department

received information on October 3, 1993 from an informant that

Dorian Rogers' (a narcotics dealer) people from California would be

arriving the evening of October 3rd, and Saucic and the informant,

Gilmore, set up a delivery of seven kilograms of cocaine for October

4th. After a delay, Officer Saucic had his informer, Gilmore, arrange

a meeting with Rogers to buy the drugs.

Acting on this information, Officer Ensminger rented two rooms

(rooms 229 and 231) at the Fairfield Inn, paying with police department funds. He registered room 231 in Gilmore's name and 229 in his

own name. The officers arranged to leave a key to room 231 at the

desk for Rogers to pick up. Informant Gilmore was wired in order that

he could signal the officers waiting in room 229 to enter. The officers

arranged that once Gilmore was in room 231 and had been shown the

cocaine, Gilmore would signal by talking about the cocaine. The

police positioned officers around the hotel as well as in room 231.

Rogers paged Gilmore at about seven o'clock p.m., and Gilmore

then called Rogers to confirm the hotel location. Once Rogers, Hardison, and Oliver had all arrived they went to room 231. Officer Ensminger testified that upon receiving the pre-arranged signal indicating

Gilmore had seen the cocaine, the officers waiting in room 229

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moved into the hallway, then knocked at 231, announced their presence, and entered room 231. Once in the room the officers saw in

plain view the seven kilograms of cocaine in an open suitcase. The

officers arrested the defendants.

On March 7, 1994 Hardison moved for the suppression of the hotel

room search, and Oliver was permitted to join in that motion. On June

6, 1994 the magistrate held a hearing on the matter and on June 9

issued a memorandum and recommendation recommending that the

motion be denied. The district court, upon a de novo review, issued

an order denying the motion to suppress. The district court declined

to apply § 5C1.2 of the Sentencing Guidelines and sentenced Hardison to 121 months. The defendants appeal.

II.

The defendants argue that the holding in Minnesota v. Olson, 495

U.S. 91 (1990), should extend to include a hotel room guest who is

in the room with the permission of the person who is in actual or

apparent control of the hotel room. In Olson, however, the Court

found that the defendant possessed a legitimate expectation of privacy

in the home of his host because the defendant was an overnight guest.

Olson, 495 U.S. at 100. This socially accepted expectation of privacy

thus gave the defendant standing to contest the warrantless search.

Olson, 495 U.S. at 99-100.

Here, however, the magistrate judge, by distinguishing Olson

effectively demonstrated the manner in which the facts in the instant

case in no way call for an extension of Olson :

The defendants in the instant case did not rent the hotel

room, nor were they in lawful occupancy thereof. The room

was rented by a Charlotte-Mecklenburg Police Officer with

city funds in the name of an informant, and the officers in

the adjacent room had a key. They were in the room temporarily and for the single purpose while a cocaine deal involving cocaine in which they have asserted no property interest

was being concluded by their travelling companion and codefendant [Rogers]. They had no proper personal relationship with Louis Gilmore, the informant, in whose name the

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room was rented by the Charlotte-Mecklenburg Police

Department. . . . Although one might suppose that they did

not expect to be observed, their subjective expectation of

privacy as they watched the cocaine transaction is not one

that society is prepared to recognize as reasonable. In light

of these facts, the suggested analogy between these defendants and the longer-term house guest is not so strong --

and in fact far too weak -- to justify the extension of the

Minnesota v. Olson analysis and holding.

We find that Hardison and Oliver lacked an expectation of privacy

"rooted in understandings that are recognized and permitted by society," Olson, 495 U.S. at 100 (internal quotations omitted). Thus, they

cannot invoke the protection of the Fourth Amendment.

To the same end and effect, the district court relied on Illinois v.

Rodriguez, 497 U.S. 177, 181 (1990), and United States v. Matlock,

415 U.S. 164, 171 (1974), for the proposition that a warrantless entry

is valid when based upon the consent of a third party whom the police

at the time of the entry reasonably believed possessed common

authority over the premises. In the case at hand, Gilmore was a police

informant, and the room was rented in his name. Gilmore signalled

the officers when to come in. Certainly this was within his authority

over the premises, the rent for which had been paid by the police. So

the magistrate judge and the district court reached the same conclusion by two equally valid theories.

III.

Additionally, Hardison argues that it was clearly erroneous for the

district court to deny his motion for sentencing under the Sentencing

Guidelines pursuant to U.S.S.G. § 5C1.2 without respect to any statutory minimum sentence. Title 18 U.S.C. § 3553(f)(1)-(5) permits a

defendant under Title 21 U.S.C. § 846 to be sentenced without regard

to the statutory minimum sentence when the defendant satisfies the

five requirements of section 3553(f) (see U.S.S.G.§ 5C1.2).

Normally, 18 U.S.C. § 841(b)(1)(A) would require a statutory

minimum sentence of 10 years where Hardison was convicted of possession of more than 5 kilograms of cocaine. 18 U.S.C.

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§ 841(b)(1)(A)(ii)(II). Moreover, pursuant to the Sentencing Guidelines, Hardison's possession of 7 kilograms of cocaine puts his base

offense level at 32. Given his criminal history category of I, it was

within the district court's discretion to sentence Hardison to 121-151

months.

However, if Hardison were given the benefit of the§ 5C1.2 firsttime offender provision, as he argues he deserves, under Sentencing

Guidelines § 2D1.1(b)(4), his base offense level would be decreased

two levels to 30, thereby decreasing the sentencing range to 97-121

months.

While the parties did not disagree that Hardison met the first four

requirements, the district court found that the defendant did not meet

the fifth criteria. The fifth prerequisite to obtain the benefit of the

first-time offender provision is as follows:

(5) Not later than the time of the sentencing hearing, the

defendant has truthfully provided to the Government all

information and evidence the defendant has concerning the

offense or offenses that were a part of the same course of

conduct or of a common scheme or plan, but the fact that the

defendant has no relevant or useful or other information to

provide or that the Government is already aware of the

information shall not preclude a determination by the court

that the defendant has complied with this requirement.

18 U.S.C. § 3553(f)(5). Thus the defendant must be forthcoming in

the information he has given to the government with respect to the

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

a common scheme or plan.

The district court had heard all the evidence in the case. The presentence report of the probation officer did not recommend applying

Guideline 5C1.2. In addition to that, the district court heard testimony

from the defendant Hardison and, as well, from the FBI case agent in

charge of the investigation, Agent Roepe. Hardison admitted to only

a limited knowledge of the drug distribution conspiracy.

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Agent Roepe testified as to Hardison's further undisclosed involvement. The agent noted that Hardison, upon his arrest, had admitted he

was a member of the Crips gang. Based on Roepe's own investigation

and ongoing DEA investigations, he also testified that during the six

months prior to his arrest Hardison participated in a conspiracy to

transport cocaine throughout the country via commercial airlines. Further, he related that upon Hardison's October arrest, officers had

seized telephone books from both Hardison and Oliver which contained the telephone number for one K.D., whom agents had reason

to believe was Kenny Dorsey, a fugitive in a Drug Enforcement

Administration case. Roepe also testified as to hearsay information he

had obtained by de-briefing Dorian Rogers, one of Hardison's codefendants, as well as Roger's brother which implicated Hardison of

having an ongoing involvement in the drug trafficking conspiracy.

In light of this evidence the district court denied Hardison's motion

for sentencing under § 5C1.2 because the court found:

[Hardison was] being evasive and concealing his full

involvement. . . . Based on the examination of the defendant

and the FBI agent, it appears that the defendant is deeply

involved in the drug trafficking business, and that characterizing him as a first-time offender is a mischaracterization

and would distort the effect of Congress' allowance of an

exception because he does not qualify for it.

Hardison complains that the agent's testimony was uncorroborated

and thus the government did not meet its burden of showing Hardison

had not been truthful and forthcoming with the court. Further, Hardison argues his due process rights were violated because portions of

Roepe's testimony constituted hearsay.

The Sentencing Guidelines, however, do not limit the type of information the sentencing judge may consider. See United States v.

Bowman, 926 F.2d 380, 381 (4th Cir. 1991) (district court may consider any reliable evidence at sentencing, including hearsay).

We are of opinion that the finding of the district court, that Hardison was not being forthcoming is a finding of fact which is not clearly

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erroneous, and its conclusion that § 5C1.2 does not apply is free from

error.

The convictions of the defendants and the sentence of Hardison are

accordingly

AFFIRMED.

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