UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

No. 96-4687

PETER SIMPSON, a/k/a Peter Pillings,

a/k/a Clarence Floyd, a/k/a

Diamond,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of West Virginia, at Clarksburg.

Robert Earl Maxwell, Senior District Judge.

(CR-95-5)

Submitted: July 8, 1997

Decided: July 23, 1997

Before HALL, HAMILTON, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Brian J. Murphy, Baltimore, Maryland, for Appellant. William D.

Wilmoth, United States Attorney, Thomas O. Mucklow, Assistant

United States Attorney, Wheeling, West Virginia, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Peter Simpson appeals from a jury verdict convicting him of all

eleven counts of an indictment charging him with one count of conspiracy to possess with intent to distribute and to distribute crack in

violation of 21 U.S.C. § 846 (1994), four counts of distribution of

crack in violation of 21 U.S.C. § 841(a)(1) (1994), five counts of traveling and causing individuals to travel in interstate commerce to facilitate his crack cocaine enterprise in violation of 18 U.S.C.

§ 1952(a)(3) (1994), and one count of aiding and abetting the maintenance of a crack house in violation of 21 U.S.C.§ 856 (1994). The

district court sentenced Simpson to fifty years on the conspiracy

count, twenty years on each of the distribution counts and for aiding

and abetting the maintenance of a crack house, and five years on each

count of traveling in interstate commerce, all to run concurrent to

each other and to the conspiracy count.

On appeal, Simpson argues that the district court erred in denying

his motion for acquittal seeking dismissal of certain counts of the

indictment as multiplicitous and by imposing a two-level enhancement for possession of a firearm under United States Sentencing

Commission, Guidelines Manual, § 2D1.1(b)(1) (Nov. 1996). Finding

no reversible error, we affirm.

Simpson contends that the district court erred by refusing to dismiss various counts of the indictment in denying his motion for

acquittal. He argues that the interstate travel counts subsume the crack

house operation and distribution charges because proof of those acts

are necessary to prove the interstate travel charges. Simpson also

makes temporal challenges to four of the distribution counts because

they charge conduct alleged in other charges. During the trial proceedings, Simpson submitted an oral Fed. R. Crim. P. 29(a) motion.

The district court denied it. After the conviction on all counts by the

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jury, Simpson submitted a Fed. R. Crim. P. 29(c) motion. Both Rule

29 motions challenged the multiplicity of the counts of the indictment.

All defenses and objections based upon defects in the indictment

must be raised prior to trial. See Fed. R. Crim. P. 12(b). Failure to

raise such objections prior to trial constitutes a waiver of those issues

except for good cause shown. See Fed. R. Crim. P. 12(f). Simpson's

challenge of the multiple count indictment on multiplicity grounds is

waived by a failure to raise the issue below prior to trial. See United

States v. Price, 763 F.2d 640, 643 (4th Cir. 1985). We therefore

decline to reach the issue, as Simpson failed to raise it in a timely

manner.

The second issue Simpson raises is that the district court erred by

imposing a two-level sentencing enhancement for possessing a firearm during the commission of the offense. Simpson argues that the

district court improperly relied upon grand jury testimony that was

not in the record in finding that a gun found in his New York apartment was connected to the offense of conviction.

The presentence report (PSR) recommended that a two-level

enhancement was warranted under USSG § 2D1.1(b)(1). The probation officer found that Simpson used two members of his crack distribution network, Charles Cox and Debbie Floyd, to purchase firearms

on his behalf. Simpson objected to the findings by the probation officer and the district court thoroughly reviewed the objection to the

enhancement at the sentencing hearing.

At the sentencing hearing the Government offered the testimony of

the investigating Federal Bureau of Investigation case agent, J.C. Raffety, as factual support for the enhancement. Agent Raffety testified

that Debbie Floyd revealed to him during an interview that she had

been involved in purchasing firearms at the request of Simpson and

that it was her understanding that the money to pay for the purchase

on at least one occasion came from proceeds from the sale of drugs.

Agent Raffety testified that he also discussed the firearm purchases

with Charles Cox. Cox told Raffety that he had purchased several

firearms for Simpson. Raffety was able to trace one such purchase by

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Cox of a Glock 19 firearm from a West Virginia pawn shop to a firearm recovered in New York when Simpson was arrested.

The district court stated that it was imposing the enhancement

based upon Agent Raffety's testimony and the grand jury testimony

of Charles Cox. Neither the Government nor the Defendant entered

the transcript of the grand jury proceedings as an exhibit.

The district court's factual findings are reviewed under the clearly

erroneous standard, while its interpretation of guideline terms is

reviewed de novo. See United States v. Daughtrey , 874 F.2d 213, 217

(4th Cir. 1989).

We find that the district court's factual finding that Simpson possessed firearms in relation to the conspiracy charge is not clearly erroneous. Agent Raffety's testimony alone is enough to support the

district court's conclusion. In addition, the district court is permitted

to consider any relevant information regardless of whether the evidence would be admissible under the Federal Rules of Evidence. See

USSG § 6A1.3(a); United States v. Roberts , 881 F.2d 95, 106 (4th

Cir. 1989).

We deny the Government's motions to supplement the record and

file a supplemental appendix including the grand jury testimony

because the supplemental information is not necessary to decide this

case. 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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