* This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAR 5 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 97-1207

v. (D. Colorado) SABRINA EDDINGS, also known as Sabrina Smith,

Defendant - Appellant. (D.C. No. 96-CR-445-1)

ORDER AND JUDGMENT *

Before ANDERSON , McKAY , and LUCERO , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.- 2 -

Sabrina Eddings, a.k.a. Sabrina Smith, appeals her 60-month sentence imposed following a plea of guilty to one count of possession with intent to distribute cocaine base, in violation of 18 U.S.C. § 2 and 21 U.S.C. §§ 841(a)(1) and (b)(1)(B). She argues the district court erredin failing to grant her the full extent of the departure the government sought for h er substantial assistance and in including as relevant conduct a drug transaction in volving her co-defendant. The government has filed a motion to supplement the rec ord with a transcript of the change of plea hearing conducted on January 17, 199 7. We grant the motion and affirm Ms. Eddings’ sentence.

I. Downward Departure for Substantial Assistance Ms. Eddings pled guilty pursuant to a plea agreemen t with the government, in which the government agreed to dismiss the othercounts against Ms. Eddings and move, pursuant to U.S.S.G. § 5K1.1, for a downw ard departure of one-third to one-half from the lower end of the guideline ra nge, based upon Ms. Eddings’ substantial assistance to the government. The gove rnment subsequently filed the § 5K1.1 motion, requesting a downward departure of approximately 50%, which would result in a 44-month sentence. At the senten cing hearing held that same day, the court declined to depart downward to the f ull extent requested by the1 Furthermore, we reject her rather vague arguments that there was an incorrect

application of the guidelines in this case. The record belies her argument that there was a discrepancy between the offense level as stated at the sentencing hearing and as stated in the court’s written findings, nor was there a violation of the guideline relating to the acceptance of plea agreements. - 3 - government, settling instead on a 60-month sentence , which represented a downward departure of approximately 25%. Ms. Eddings challenges that decision, arguing it re sulted in an “incorrect application of the guidelines.” Appellant’s Openin g Br. at 7. A defendant can appeal a guidelines sentence if the sentence was imposed in violation of the law, was imposed as a result of an incorrect application of the guidelines, or was greater than that specified in the applicable guide line. 18 U.S.C. § 3742(a). We have repeatedly rejected the argument that a compla int about the degree of downward departure, whether cast as a violation of the law or a misapplication of the guidelines, is reviewable. See , e.g. , United States v. McHenry , 968 F.2d 1047, 1049 (10th Cir. 1992); United States v. Bromb erg , 933 F.2d 895, 897 (10th Cir. 1991). We therefore lack jurisdiction to cons ider Ms. Eddings’ argument. 1

II. Relevant Conduct Ms. Eddings pled guilty to count 3 of the supersedi ng indictment, which involved a sale of cocaine by Ms. Eddings to a conf idential informant on October 7, 1996. Ms. Eddings’ co-defendant, Willia m Walton, pled guilty to2It is therefore irrelevant that, in the plea agreement, the government conceded that

“it is questionable whether the Government could readily prove Defendant’s guilt as to Count Five.” Plea Agreement and Stipulation of Facts Relevant to Sentencing at 4, R. Vol. 3. - 4 - count 5 of the superseding indictment, which involv ed a sale of cocaine to the informant on October 9, 1996. The presentence repo rt for Ms. Eddings treated the October 9 sale as relevant conduct. Ms. Edding s objected to that recommendation. She argues on appeal that the dist rict court erred in considering that sale as relevant conduct. “We review for clear error district court factual f indings regarding drug quantities and whether certain conduct is relevant conduct under the guidelines.” United States v. Richards , 27 F.3d 465, 468 (10th Cir. 1994). Relevant cond uct includes all acts that were part of the same course of conduct or scheme or plan as the offense of conviction, “‘regardless of whether the defendant was convicted of the underlying offenses pertaining to the additiona l amounts.’” United States v. Roederer , 11 F.3d 973, 978-79 (10th Cir. 1993) (quoting Uni ted States v. Rutter , 897 F.2d 1558, 1562 (10th Cir. 1990)). 2 In determining whether certain acts are relevant conduct for sentencing purposes, “‘the sentencing court is to consider such factors as the nature of the defendant’s acts, his role, and the number and frequency of repetitions of those acts, in determin ing whether they indicate a- 5 -

behavior pattern.’” Id. at 979 (quoting United States v. Santiago , 906 F.2d 867, 872 (2d Cir. 1990)). At the sentencing hearing, the court heard testimony from Mr. Walton and reviewed tape recordings made of conversations betw een the informant and Ms. Eddings and the informant and Mr. Walton on October7 and 9. The court made the following findings:

After the October 7, 1996 drug transaction, [ ] whi ch the defendant does not deny as relevant conduct, the de fendant told the [confidential informant] that if he wanted more cra ck, he could get the crack from an individual identified as Lynch. She gave the [informant] Lynch’s name and pager number, as couns el has just pointed out. Nevertheless, the [informant] continued to contact her. And so the question is, is she responsible for that, or di d she withdraw from the conspiracy? She clearly did not withdraw from the conspiracy. She clearly remained responsible for this. On October 9, the [informant] contacted her by way of pager and arranged for the purchase of crack cocaine.

. . . The confidential informant confirms with the defend ant that the defendant will have the zone, one ounce of crac k cocaine, on the 9th. The defendant tells the confidential informant thatthe price is 1050, meaning 1050. She doesn’t say, I told you to call somebody else; she doesn’t say, it’s not available; she does n’t say, I don’t know anything about it; she says the price is 1050. On October 9, 1996 at 12:45 p.m., the [informant] r eturned a pager call containing the defendant’s personal page r code. She must have put in her personal pager code. She didn’t wi thdraw, she didn’t give the call to anybody else, she put in her perso nal pager code. The defendant states on the tape that she will be t here in the next 30 minutes and verified that the price was 105 0. There was a second call in which the [informant] re turned the pager call. The pager call once again had the defe ndant’s personal- 6 -

pager code, in addition to the prearranged price fo r the crack cocaine, which was 1050. This time Mr. Walton answers the p hone. This time he says “Sabrina put in his code.” It is clear to me, not by a preponderance of the ev idence, but beyond a reasonable doubt, that she was involved inthis sale. . . . She had been dealing drugs with Mr. Walton over a p eriod of time, that was got—that was obtained from Mr. Walton’s te stimony, if it wasn’t clear from the presentence report. And she did not effectively withdraw from dealing drugs. This is not a situati on where she was trying to get out of it. She remained involved, cl ear through the time that Mr. Walton actually contacted and consummated the transaction. The fact that she was not present is of no signific ance. I don’t have any problem in concluding that the rel evant conduct in this case includes the October 9 transac tion. And I don’t believe any inference to the contrary should be drawn. Transcript of Sentencing Hr’g at 22-24, R. Vol. 2. We have reviewed the record in this case, which amply supports the district cou rt’s findings and conclusions. The court did not err in treating the October 9 sal e as relevant conduct. For the foregoing reasons, we AFFIRM the district c ourt’s decision imposing a 60-month sentence.
ENTERED FOR THE COURT
Stephen H. Anderson Circuit Judge