UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4141

RANDY SMITH,

Defendant-Appellant.

Appeal from the United States District Court

for the District of South Carolina, at Anderson.

G. Ross Anderson, Jr., District Judge.

(CR-96-327-4)

Submitted: March 3, 1998

Decided: April 6, 1998

Before MICHAEL and MOTZ, Circuit Judges, and

BUTZNER, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Thomas E. Mosley, Columbia, South Carolina, for Appellant. J. Rene

Josey, United States Attorney, Beth Drake, 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Unpublished opinions are not binding precedent in this circuit.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).
OPINION

PER CURIAM:

Randy Smith appeals his sentence imposed after he pleaded guilty

pursuant to a written plea agreement to conspiracy to distribute

cocaine and crack cocaine in violation of 21 U.S.C.§ 846 (1994).

Finding no error, we affirm.

On appeal, Smith contends that the district court erred in applying

a three-level offense level enhancement for his role in the offense

without first hearing any evidence at the sentencing hearing to support

such an enhancement. Smith also contends that the Government

breached the plea agreement by presenting facts to the court at the

sentencing hearing which were not included in the plea agreement

stipulations.

I.

Smith initially objected to his presentence investigation report's

(PSR's) recommendation that he deserved a three-level role enhancement under USSG § 3B1.1(b) for being a manager or a supervisor in

a criminal enterprise. He objected on the ground that he only supervised one person. Smith withdrew this objection at the sentencing

hearing. Smith did not object to his presentence report on the ground

he now raises, that the government had not alleged (or proved) that

the drug ring in which he was involved had five or more people (as

required by § 3B1.1(b)). Due to his failure to object on this ground,

the government did not offer evidence (as it was prepared to do via

testimony at sentencing) that the ring involved more than five people.

Rather, it rested on the facts alleged in the presentence report, which

suggested that at least five persons were involved in Smith's drug

operation and that Smith supervised three of these persons. Under the

circumstances, we conclude that the district court did not plainly err

in accepting the conclusions of the presentence report and in not

requiring additional proof from the government at sentencing.

II.

Because Smith did not claim that the Government breached the

plea agreement in the district court, this court reviews this claim for

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plain error. See United States v. Olano, 507 U.S. 725, 731-32 (1993);

United States v. McQueen, 108 F.3d 64, 65-66 (4th Cir. 1997).

In the plea agreement, the parties stipulated that Smith was

involved in the distribution of between 150 and 500 grams of crack

cocaine, resulting in a base offense level of thirty-four under the U.S.

Sentencing Guidelines Manual § 2D1.1 (1995). However, the plea

agreement states that Smith understands that the stipulations are not

binding on the court or the probation office, and that if the district

court does not accept the stipulations, Smith has no right to withdraw

his plea. The plea agreement also provides that the Government

retains the right to inform the court of any relevant facts, to address

the court regarding the nature of the offense, to respond to the court's

questions, and to respond to statements made to the court by or on

behalf of Smith.

Consistent with the plea agreement, the PSR set Smith's base

offense level at thirty-four and recommended that he receive a threelevel increase for his role in the offense. However, the PSR recommended several additional adjustments, including a two-level increase

under USSG § 2D1.1(b)(1) for possession of a dangerous weapon, a

two-level increase for obstruction of justice under USSG § 3C1.1

(1995), and a three-level decrease for acceptance of responsibility

under USSG § 3E1.1. The adjustments resulted in a total offense level

of thirty-eight.

At the sentencing hearing, Smith objected to the adjustments in the

PSR and offered arguments against them. The Government replied by

arguing in support of the increases and supplied the court with facts

outside of the plea agreement supporting the increases. The court

adopted the factual statements and the recommendations in the PSR

and set Smith's offense level at thirty-eight.

The Government did not break any promises it made in Smith's

plea agreement when it provided the court with information relevant

to sentencing. The Government explicitly reserved the right to provide the court with other information relevant to sentencing, and to

respond to statements made by or on behalf of Smith. Therefore, the

Government did not breach the plea agreement. See United States v.

Gordon, 61 F.3d 263, 267-68 (4th Cir. 1995); United States v.

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Peglera, 33 F.3d 412, 413-14 (4th Cir. 1994); United States v.

Fentress, 792 F.2d 461, 464 (4th Cir. 1986); see also USSG

§ 6B1.4(d) & comment. (1995).

We affirm Smith's sentence. We deny Smith's motion to file a supplemental pro se brief. 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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