UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 01-4936

ROBERT EARL KIRKLAND, JR., a/k/a

June,

Defendant-Appellant. 

Appeal from the United States District Court

for the Southern District of West Virginia, at Beckley.

Robert C. Chambers, District Judge.

(CR-01-149)

Submitted: April 25, 2002

Decided: May 6, 2002

Before WILLIAMS and KING, Circuit Judges, and

HAMILTON, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion. 

COUNSEL

Mary Lou Newberger, Federal Public Defender, Brian J. Kornbrath,

Assistant Federal Public Defender, Charleston, West Virginia, for

Appellant. Kasey Warner, United States Attorney, John L. File, Assistant United States Attorney, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

Robert Earl Kirkland, Jr., pled guilty to distributing more than five

grams of crack cocaine, 21 U.S.C.A. § 841(a)(1) (West 1999). The

district court imposed a sentence of eighty-seven months imprisonment. Kirkland appeals this sentence, arguing that the district court

clearly erred in finding that he had not accepted responsibility, U.S.

Sentencing Guidelines Manual § 3E1.1 (2001), and that he did not

have a minor role in the offense. USSG § 3B1.1. We affirm. 

In a controlled purchase of 22.7 grams of crack by a confidential

informant, Kirkland acted as the middleman. He made arrangements

with a drug dealer for the sale of an ounce of crack and relayed the

price to the informant. He drove to the dealer’s house with the informant, went inside with half the money and brought out a sample of

the crack. When the informant approved it, Kirkland took in the balance of the payment and returned with the rest of the crack. A defendant has a minor role if his conduct is not only less culpable than the

conduct of others involved, but is not "material or essential" to commission of the offense. United States v. Akinkoye, 185 F.3d 192, 202

(4th Cir. 1999). Kirkland argues that the informant could have

obtained the crack directly from the dealer, but the facts before the

district court were that Kirkland, given the opportunity, chose to facilitate the sale and was paid for his help. We cannot say that the district

court clearly erred in finding that Kirkland had more than a minor

role. United States v. Love, 134 F.3d 595, 606 (4th Cir. 1998) (stating

standard). 

Nor do we find clear error in the district court’s denial of an adjustment for acceptance of responsibility. United States v. Ruhe, 191 F.3d

376, 388 (4th Cir. 1999) (stating standard). After being freed on bond

before his guilty plea, Kirkland violated the conditions of his release

by testing positive for cocaine use several times. The district court

2 UNITED STATES v. KIRKLAND
found even more significant the fact that Kirkland substituted someone else’s urine for his own at one drug screening and told the drug

treatment program personnel that his positive drug tests might have

resulted from his handling of cocaine because he was continuing to

sell it. Kirkland later denied that he had continued selling drugs.

However, we believe the district court did not clearly err in finding

that Kirkland had failed to meet his burden of showing that he was

entitled to the adjustment. United States v. Harris, 882 F.2d 902, 907

(4th Cir. 1989). 

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

UNITED STATES v. KIRKLAND 3