UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 95-5611

DAVID COLEMAN,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of West Virginia, at Wheeling.

Frederick P. Stamp, Jr., Chief District Judge.

(CR-95-4)

Submitted: June 20, 1996

Decided: July 16, 1996

Before HALL, WILKINS, and HAMILTON, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Joseph J. Harris, Morgantown, West Virginia, for Appellant. William D. Wilmoth, United States Attorney, Sam G. Nazzaro, Assistant

United States Attorney, Wheeling, West Virginia, 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Unpublished opinions are not binding precedent in this circuit.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:

David Coleman appeals the 40-month sentence imposed by the district court after he pled guilty to conspiracy to distribute crack

cocaine, 21 U.S.C.A. § 846 (West Supp. 1996). He contends that the

district court clearly erred in refusing to give him a minimal role or

a minor role adjustment. United States Sentencing Commission,

Guidelines Manual § 3B1.2 (Nov. 1994). We affirm.

During an investigation into drug trafficking in an area of Wheeling, West Virginia, Coleman approached two confidential informants

on two separate occasions. On the first occasion, Coleman arranged

for them to buy crack from an unidentified male. On the second occasion, he arranged a sale by co-defendants Nicole Moseby and Dickie

Leeper. Coleman was paid in crack each time. At his guilty plea hearing, the government agent testified that Coleman had an agreement

with Moseby, Leeper, and others by which he facilitated their crack

sales in return for crack for his own use.

As part of the plea agreement, the government stipulated that Coleman's relevant conduct involved less than a gram of crack and agreed

to recommend a minimal role adjustment. The probation officer, however, recommended no mitigating role reduction because Coleman

understood the activities of his co-conspirators and because he

actively promoted crack sales. The probation officer also pointed out

that Coleman was being held responsible only for the two transactions

with the confidential informants. Both Coleman and the government

objected to the probation officer's recommendation and argued for the

adjustment at the sentencing hearing. However, the district court

agreed with the probation officer and found that Coleman was not a

minimal participant.

A minimal role adjustment may be given if the sentencing court

finds that the defendant was "plainly among the least culpable of

those involved in the conduct of the group," as indicated by his "lack

of knowledge or understanding of the scope and structure of the enterprise and of the activities of others." USSG§ 3B1.2, comment. (n.1).

The adjustment is meant to be used infrequently. USSG § 3B1.2,

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comment. (n.2). It is the defendant's burden to prove to the district

court by a preponderance of the evidence that he is entitled to the

adjustment. United States v. Reavis, 48 F.3d 763, 769 (4th Cir.), cert.

denied, 63 U.S.L.W. 3890 (U.S. June 19, 1995) (No. 94-9316).

In making its determination, the district court is to "not only compare the defendant's culpability to that of other participants, but also

`measur[e] each participant's individual acts and relative culpability

against the elements of the offense of conviction.'" Id. (quoting

United States v. Daughtrey, 874 F.2d 213, 216 (4th Cir. 1989)). The

district court's decision is reviewed for clear error. Reavis, 48 F.3d at

768.

Coleman argued that the adjustment should apply because he was

primarily a crack user interested in obtaining crack for his personal

use. However, he presented no evidence which would have given the

court a different understanding of his role in the conspiracy. Consequently, we find that the district court did not clearly err in adopting

the probation officer's recommendation.

Coleman also contends that the district court clearly erred in failing

to consider a two-level adjustment for a minor role. USSG

§ 3B1.2(b). A minor participant is one who"is less culpable than

most other participants, but whose role could not be described as minimal." Id. A defendant whose conduct is somewhere between "minor"

and "minimal" may receive a three-level reduction. Coleman did not

request either a two-level or three-level adjustment in the district

court. We find that the district court did not plainly err in failing to

address the issue or in failing to make a two-level or three-level

reduction.

We therefore affirm the 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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