UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 94-5825

BRYANT ROGER CAIN,

Defendant-Appellant.

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

William M. Nickerson, District Judge.

(CR-93-277)

Submitted: March 21, 1996

Decided: April 2, 1996

Before NIEMEYER and MICHAEL, Circuit Judges, and

BUTZNER, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

George A. Epstein, Baltimore, Maryland, for Appellant. Lynne A.

Battaglia, United States Attorney, John F. Purcell, Jr., Assistant

United States Attorney, Baltimore, Maryland, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).
OPINION

PER CURIAM:

Bryant Roger Cain pled guilty to conspiracy to distribute and to

possess with intent to distribute crack cocaine, 21 U.S.C.A. § 846

(West Supp. 1995), and received a sentence of 135 months imprisonment. He contends on appeal that the district court erred in finding

that he had more than a minor role in the offense. United States Sentencing Commission, Guidelines Manual, § 3B1.2(b) (Nov. 1993).

Finding no clear error, we affirm the sentence.

In six recorded telephone calls, Cain negotiated the sale of a halfkilogram of crack to a confidential informant. When the sale took

place on October 24, 1991, Cain arrived at the meeting place with

David Brown, who then made a telephone call to his brother, Ronald

Brown. At Ronald Brown's request, everyone moved across the street

to a different parking lot, where Ronald Brown delivered the crack.

Cain subsequently negotiated with an undercover agent posing as a

friend of the informant for another half-kilogram sale. However, the

sale never took place. Ronald Brown was later killed. In 1993, Cain

and David Brown were charged with conspiracy in connection with

the October 1991 sale. Both entered guilty pleas. When he was

arrested, Cain had 18 packets of crack in his pocket. He owned a Corvette and a Nissan Pathfinder, both of which he had purchased with

cash in the names of relatives.

Cain argued at sentencing that he was a minor participant because

he merely acted as a middleman or broker for the Browns and because

there was no direct evidence that he profited from the deal. Under

USSG § 3B1.2, a minor participant is a one who is less culpable than

most other participants, but who has more than a minimal role. In

determining the defendant's role, the district court should not only

compare his conduct with that of the other participants, but weigh it

against the elements of the offense of conviction. United States v.

Reavis, 48 F.3d 763, 769 (4th Cir.), cert. denied, ___ U.S. ___, 63

U.S.L.W. 3890 (U.S. June 19, 1995) (No. 94-9316).

The district court agreed with the government that Cain was more

than a minor participant because he was instrumental in bringing

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about the sale. The court took into account that, during the October

24, 1991, sale, Cain told the confidential informant that he had been

dealing with Ronald Brown for six years and also considered the evidence that Cain continued his involvement with drug sales until his

arrest. We find that the district court's determination of this factual

question, id. at 770, was not clearly erroneous.

Accordingly, the sentence imposed by the district court is 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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