UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4716

ALBERT LAMAR WELLS, III,

Defendant-Appellant.

Appeal from the United States District Court

for the District of South Carolina, at Charleston.

C. Weston Houck, Chief District Judge.

(CR-93-353)

Submitted: November 3, 1998

Decided: January 4, 1999

Before ERVIN, WILKINS, and NIEMEYER, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

David A. Bornhorst, North Charleston, South Carolina, for Appellant.

J. Rene Josey, United States Attorney, Mary Gordon Baker, 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Unpublished opinions are not binding precedent in this circuit.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:

Albert Lamar Wells, III, appeals from his sentence for knowingly

and intentionally possessing with the intent to distribute cocaine base,

in violation of 21 U.S.C. § 841(a)(1) (1994). Finding no error, we

affirm.

Law enforcement officials began an investigation after receiving

information that Wells was part of a group of individuals responsible

for the sale and distribution of cocaine base in several counties of

South Carolina. The Federal Bureau of Investigation utilized a confidential informant with prior knowledge of Wells's drug dealing to

purchase cocaine base from Wells. Under the direction of law

enforcement officials, the confidential informant made six undercover

buys of cocaine base from Wells between April and May 1992.

Wells was indicted for conspiring to possess with the intent to distribute cocaine base and five substantive counts of possessing with the

intent to distribute cocaine base. The conspiracy count named Wells,

his co-defendant, and others known and unknown to the grand jury.

Wells pled guilty to one of the substantive counts of the indictment,

which was based on one of the drug purchases by the confidential

informant. The government debriefed Wells in November 1993 and

again in March 1994, subjecting him to a polygraph examination in

1994. He failed two questions during the polygraph examination.

Wells was sentenced in March 1994 to 120 months of incarceration

after the district court determined that that was the statutory mandatory minimum sentence to which Wells was subject. See 21 U.S.C.A.

§ 841(b) (West Supp. 1998).

Wells subsequently filed an appeal with this court pursuant to

Anders v. California, 386 U.S. 738 (1967), challenging the constitutionality of the statutory mandatory penalty scheme and this court

affirmed the district court's judgment. Wells then filed a motion pursuant to 28 U.S.C.A. § 2255 (West 1994 & Supp. 1998), relating to

a miscalculation of the drug amount for purposes of imposing the stat-

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utory mandatory minimum sentence. In February 1997, the district

court granted Wells's 2255 motion and ordered resentencing.1

The United States Probation Office submitted a revised presentence

report in June 1997. Wells filed objections to the revised presentence

report. One of Wells's objections was that he was qualified for a twolevel reduction in his offense level under U.S. Sentencing Guidelines

Manual §§ 2D1.1(b)(4), 5C1.2 (the "safety valve" provision) (Nov.

1995).2 The Government filed an addendum to the presentence report

addressing Wells's objections. The presentence report and the addendum stated that the presentence report was prepared based on the

1993 Guidelines Manual. In August 1997, Wells was resentenced to

97 months of incarceration followed by five years of supervised

release.

On appeal, Wells claims that at his resentencing the district court

should have considered a presentence report that was based on the

1995 Guidelines Manual. Wells also claims that the district court

erred in denying him a two-level reduction in his offense level pursuant to U.S.S.G. §§ 2D1.1(b)(4), 5C1.2 (the"safety valve" provision),

amendments that are contained in the 1995 Guidelines Manual.

As Wells notes, a sentencing court is required to use the Guidelines

Manual in effect on the date that a defendant is sentenced. See United

States v. Capers, 61 F.3d 1100, 1109 (4th Cir. 1995); 18 U.S.C.

§ 3553(a)(4) (1994); U.S.S.G. § 1B1.11(a). The Government admits

that Wells's revised presentence report utilized the 1993 rather than

the 1995 Guidelines Manual. Wells complains that he did not have the

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1 At the first sentencing hearing, all relevant conduct was erroneously

considered for purposes of applying the mandatory minimum sentence

rather than just the amount of drugs involved in the count of conviction.

See United States v. Estrada, 42 F.3d 228, 231-33 (4th Cir. 1994).

2 We note that because the mandatory minimum for Wells's conviction,

five years pursuant to § 841(b)(1)(B) (West 1994), was less than Wells's

guideline range (using either an offense level of 29 or 27), he would not

benefit from relief solely under U.S.S.G. § 5C1.2 (this section affords a

defendant, who satisfies certain criteria, relief by sentencing him in

accordance with his guidelines without regard to any statutory mandatory

minimum sentence).

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benefit of a presentence report which addressed the amendments in

the 1995 Guidelines Manual. Specifically, he claims that the probation office's failure to use the 1995 Guidelines Manual in preparing

his revised presentence report deprived him of a two-level reduction

in his offense level pursuant to U.S.S.G. §§ 2D1.1(b)(4), 5C1.2. However, Wells's sentencing transcript reveals that, at his resentencing

hearing, he claimed that he was qualified for a two-level reduction in

his offense level pursuant to U.S.S.G. §§ 2D1.1(b)(4), 5C1.2. The

sentencing court considered Wells's claim and determined that he was

not eligible for relief under these sections. Because the district court

analyzed Wells's entitlement to a reduction in his offense level

afforded by the amendments contained in the 1995 Guidelines Manual, the district court did use the Guidelines Manual in effect on the

date Wells was resentenced.

Wells next claims that the district court erred in finding that he was

not entitled to a two-level reduction in his offense level pursuant to

U.S.S.G. §§ 2D1.1(b)(4), 5C1.2. Subsection (b)(4) provides for a twolevel reduction if the defendant meets the criteria set forth in the

"safety valve" provision, see 18 U.S.C.A. § 3553(f)(1)-(5) (West

Supp. 1998); U.S.S.G. §§ 2D1.1(b)(4), 5C1.2, and his offense level is

26 or more. Wells's offense level at his resentencing was 29. The fifth

requirement of the "safety valve" provision is that, by the time of sentencing, "the defendant has 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." § 3553(f)(5); U.S.S.G.§ 5C1.2(5). The district court

found that Wells did not satisfy this requirement. Wells had the burden of proving that he qualified for application of the safety valve

provision. See United States v. Beltran-Ortiz , 91 F.3d 665, 669 (4th

Cir. 1996). The district court's determination of whether Wells satisfied the requirements of § 3553(f)(1)-(5) is a question of fact

reviewed for clear error. See United States v. Romo, 81 F.3d 84, 86

(8th Cir. 1996); United States v. Rodriguez, 69 F.3d 136, 144 (7th Cir.

1995).

Wells pled guilty to the distribution of cocaine base on one particular occasion, but the indictment charged him with other sales of

cocaine base. During the six controlled purchases, Wells made many

comments indicating that his drug business involved other individu-

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als. The Government debriefed Wells in November 1993 and March

1994. Wells did not provide any last names of the persons from whom

he had bought cocaine base or to whom he had sold cocaine base,

other than his codefendant. Furthermore, Wells failed a polygraph

examination administered to him in March 1994. Because the Government was attempting to investigate a larger group, including

Wells's sources and clients, Wells was administered the following

two questions during his polygraph examination:"Did you every buy

or sell illegal drugs for Herman Pugh?" and "Did you ever travel outside of South Carolina to buy or sell illegal drugs?" Wells answered

"no" to both these questions. The polygrapher concluded that Wells

was deceptive in answering these two questions.

Wells contends that these questions were outside the scope of

§ 5C1.2(5) because they did not address the offense or offenses

charged in his indictment. He alleges that the district court's application of § 5C1.2(5) "included any possible drug activity no matter how

far removed or apart from the offenses charged." We disagree. "`Offense' means the offense of conviction and relevant conduct under

§ 1B1.3 (Relevant Conduct) unless a different meaning is specified or

is otherwise clear from the context." U.S.S.G.§ 1B1.1, comment.

(n.1(l)). Offenses are part of a common scheme or plan when they are

substantially connected to each other by at least one common factor

such as common victims, common accomplices, common purpose or

similar modus operandi. See U.S.S.G. § 1B1.3, comment. (n.9(a)).

Moreover, offenses that do not qualify as part of a common scheme

or plan may qualify as part of the same course of conduct if they are

sufficiently connected or related to each other as to warrant the conclusion that they are part of a single episode, spree, or ongoing series

of offenses. See U.S.S.G. § 1B1.3, comment. (n.9(B)). Factors appropriate to this determination include the degree of similarity of the

offenses, the regularity of repetitions of the offenses and the time

interval between the offenses. See id.

The questions administered during the polygraph examination

related directly to the buying and selling of drugs and the determination of Well's sources, clients, and mode of operation, whether or not

the drugs came from outside of South Carolina. We find that the two

questions which provided the basis for Wells's deception were within

the scope of his relevant conduct. Although the questions related to

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conduct that was not specifically charged in Well's indictment,

uncharged conduct can constitute the same course of conduct and a

common scheme or plan. See U.S.S.G. § 1B1.3. Thus, the district

court did not clearly err in finding that Wells did not satisfy U.S.S.G.

§ 5C1.2(5).

Accordingly, we affirm Wells'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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