UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4733

DEJUAN SOTO,

Defendant-Appellant.

Appeal from the United States District Court

for the District of South Carolina, at Rock Hill.

Joseph F. Anderson, Jr., District Judge.

(CR-96-15)

Submitted: June 9, 1998

Decided: June 26, 1998

Before ERVIN, MICHAEL, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

David B. Betts, Columbia, South Carolina, for Appellant. J. Rene

Josey, United States Attorney, Marshall Prince, 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Unpublished opinions are not binding precedent in this circuit.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).

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OPINION

PER CURIAM:

Dejuan Soto pled guilty to conspiracy to possess cocaine with

intent to distribute, 21 U.S.C. § 846 (1994). He appeals the

130-month sentence he received, contending that the district court

clearly erred in determining that he was responsible for at least 3.5

kilograms of cocaine, see USSG § 2D1.1,* in finding that he was not

a minor or minimal participant, see USSG§ 3B1.2, in finding that he

obstructed justice, see USSG § 3C1.1, and in finding that he had not

accepted responsibility for his offense, see USSG § 3E1.1. Soto has

requested leave to file a pro se supplemental brief in which he further

contests the district court's finding concerning the drug amount and

argues that the district court failed to make a specific finding on the

matter. We grant leave to file the supplemental brief and affirm.

At Soto's sentencing hearing, Federal Bureau of Investigation

(FBI) Agent Michael Doherty testified that, after Soto and thirty-six

codefedants were indicted, but while Soto remained a fugitive, the

FBI was contacted by Sandra Ungarski. Her husband, codefendant

John Ungarski, was in custody. Sandra Ungarski said Soto, whom she

knew as Derrick Lee, had come to her house in Pennsylvania in the

middle of the night asking about her husband. Afraid to tell Soto that

her husband had been arrested, she said he was out of town. Soto

replied that he knew differently, and that if he[Soto] were arrested,

he would have some of his friends take care of her. Mrs. Ungarski

understood this to be a threat. John Ungarski subsequently informed

investigators that Soto had recruited him to transport cocaine from

New York to various locations for Leroy Gardner, a New York

cocaine dealer. Soto reportedly showed Ungarski a secret compartment in the 1985 Cadillac where the cocaine was hidden. Another

conspirator, Robert Coleman, who distributed cocaine in South Carolina, told investigators that Soto coordinated the transportation of

cocaine from Gardner to him and also arranged for money to be transferred to Gardner. He said that Soto provided him with names to use

in wiring money to Gardner, including the name Derrick Lee. Four

money orders totaling $24,000 were sent to Derrick Lee. When he

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*U. S. Sentencing Guidelines Manual (1995).

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was arrested, Soto had a Social Security card in the name Derrick

Lee.

Another courier, Jamie Winford, testified at sentencing that Soto

accompanied him when he picked up nine packages from Gardner and

another five packages from Gardner's girlfriend the same day. Each

package measured about 9-1/2 inches by 2-1/2 inches by 6-1/2 inches.

Winford understood that the packages contained cocaine and said he

believed each package contained about one kilogram of cocaine.

However, he did not weigh the packages or see the contents. Winford

said Soto placed all the packages in a secret compartment in the van

Winford was driving. Winford testified that his job was to deliver

cocaine to customers of Gardner's in Virginia, North Carolina, and

South Carolina.

Soto also testified. He said Gardner was a friend, but that he had

no part in Gardner's drug dealing. He said he also knew Ungarski and

had arranged for Ungarski to repair Gardner's cars on occasion and

that once, as a favor, Ungarski had driven one of Gardner's cars to

North Carolina to have it inspected. Soto admitted that when he gave

the car keys to Ungarski he believed cocaine was hidden in the car.

He denied picking up packages of cocaine with Winford or threatening Sandra Ungarski. He said the Social Security card in the name of

Derrick Lee which he was carrying when he was arrested had been

left at his house by his brother's friend who on occasion picked up

money for Gardner.

To determine the amount of cocaine for which Soto was accountable, the district court accepted Winford's testimony that Soto helped

him pick up a total of fourteen packages of cocaine. However, the

court declined to find that each package contained one kilogram of

cocaine, as the government argued, because Winford had not seen or

weighed the cocaine. The court estimated that the total amount

involved was at least 3.5 kilograms of cocaine based on Winford's

testimony about the packages of cocaine and the agent's testimony

concerning Soto's involvement with the transfer of money. Soto

argues on appeal that there was no reliable evidence concerning the

amount of cocaine because Winford did not see the contents of the

packages he picked up with Soto and that the district court's finding

is, consequently, clearly erroneous. See United States v. McDonald,

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61 F.3d 248, 255 (4th Cir. 1995) (standard of review). However, in

a case where there has been "no drug seizure or the amount seized

does not reflect the scale of the offense, the court may approximate

the quantity of the controlled substance." USSG§ 2D1.1, comment.

(n.12); see also United States v. D'Anjou, 16 F.3d 604, 614 (4th Cir.

1994). We are persuaded that the district court's finding was adequate

to resolve the issue. Moreover, the court's conservative estimate of

the amount of cocaine in the nine packages was not clearly erroneous.

Given the court's finding that Soto's involvement was not limited

to the conduct he admitted--delivering to Ungarski the keys to a car

he knew contained cocaine--the district court did not clearly err in

finding that he had more than a minimal or minor role in the offense.

The district court credited Winford's testimony and the hearsay information from other conspirators presented by the agent, which showed

that Soto was neither among the least culpable, see USSG § 3B1.2,

comment. (n.1), nor less culpable than most other participants. See

USSG § 3B1.2, comment. (n.3).

Soto next contends that the government failed to prove that he

obstructed justice because there was no evidence that Mrs. Ungarski

was afraid of Soto, only of his associates. He also argues that there

was no evidence that she was expected to be a witness and, therefore,

no evidence that her perception that she was threatened could have

interfered with the administration of justice. The court properly

found, however, that an attempt to intimidate a witness is enough to

trigger the adjustment. See USSG § 3C1.1 & comment. (n.3(a))

(adjustment applies if defendant attempts to impede prosecution by

threatening co-defendant or witness). We note that the threat was that

Mrs. Ungarski would be harmed by Soto's friends should Soto be

arrested; therefore, her fear was naturally directed not to Soto, but to

his friends. In addition, the threat was obviously intended to discourage either Ungarski or his wife from giving information which might

lead to Soto's arrest, and thus was intended to frustrate the prosecution of the offense. Finally, because Soto received an adjustment for

obstruction of justice, the district court did not clearly err in refusing

to award him a reduction for acceptance of responsibility. See USSG

§ 3E1.1, comment. (n.4).

Accordingly, we affirm the sentence. Soto's motion for leave to file

a pro se supplemental brief is granted. We dispense with oral argu-

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ment 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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