UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                             No. 97-4672

KAREN BARNETT,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                               No. 97-4751
VINCENT SCRUGGS, a/k/a Fletcher
Scruggs,
Defendant-Appellant.

Appeals from the United States District Court
for the Western District of Virginia, at Charlottesville.
James H. Michael, Jr., Senior District Judge.
(CR-96-54)

Submitted: April 28, 1998

Decided: June 30, 1998

Before WIDENER, LUTTIG, and WILLIAMS, Circuit Judges.

_________________________________________________________________

No. 97-4672 vacated and remanded and No. 97-4751 affirmed by
unpublished per curiam opinion.

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COUNSEL

David L. Heilberg, LAW OFFICE OF DAVID L. HEILBERG, Char-
lottesville, Virginia; Michael T. Hemenway, DYGERT & HEMEN-
WAY, Charlottesville, Virginia, for Appellants. Robert P. Crouch, Jr.,
United States Attorney, Ray B. Fitzgerald, Jr., Assistant United States
Attorney, Charlottesville, Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Vincent Scruggs and Karen Barnett both pled guilty to participat-
ing in the same conspiracy to distribute cocaine base (crack) in viola-
tion of 21 U.S.C. § 846 (1994). Scruggs received a sentence of 108
months imprisonment while Barnett was sentenced to 46 months
imprisonment. Both appeal their sentences. Scruggs argues that the
district court clearly erred in finding that he was a leader or organizer
of the conspiracy, see USSG § 3B1.1(a),1 and clearly erred in finding
that he possessed a firearm during the offense, see USSG
§ 2D1.1(b)(1). Barnett contends that the district court erred in failing
to reduce her offense level under USSG § 2D1.1(b)(4)2 after finding
that she qualified for sentencing under the safety valve provision, see
USSG § 5C1.2, and that the district court erred in refusing to conduct
an evidentiary hearing into the government's reason for not filing a
substantial assistance motion in her case, see USSG § 5K1.1, p.s. We
affirm Scruggs' sentence, but vacate Barnett's sentence and remand
for resentencing.
_________________________________________________________________
1 U.S. Sentencing Guidelines Manual (1995). Appellants were sen-
tenced in July 1997.
2 This section has been renumbered in the current sentencing manual.
USSG § 2D1.1(b)(6) (1997).

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From November 1995 until September 1996, Scruggs traveled once
or twice a week from Bremo Bluff in Fluvanna County to Richmond,
Virginia, where he purchased an ounce of crack cocaine. Scruggs then
packaged the crack in quarter-ounce quantities and fronted it to about
nine street dealers in Bremo Bluff. During the investigation, confiden-
tial informants purchased 57.44 grams of crack from Scruggs and
reported that he carried a gun during the transactions. At sentencing,
Scruggs disputed the probation officer's recommendations for a four-
level leader/organizer adjustment and a two-level enhancement for
possession of a firearm. The probation officer testified that he had
reviewed the statements of the other conspirators as well as Scruggs'
own statement in which he asserted that he associated with no more
than three people.3 The probation officer stated that, while some par-
ticipants obtained crack from persons other than Scruggs, the trail
always "led back to Mr. Scruggs." Defense counsel attacked this evi-
dence as unreliable hearsay, but the district court found that the gov-
ernment had established a basis for the leader adjustment and the
firearm enhancement by a preponderance of the evidence. We note
that there is no bar to the use of reliable hearsay at sentencing. See
United States v. Love, 134 F.3d 595, 607 (4th Cir. 1998). Therefore,
we determine that the district court did not clearly err in its conclu-
sions regarding the firearm and leader enhancements, and we affirm
Scruggs' sentence.

Barnett was one of Scruggs' customers and also distributed crack.
The probation officer recommended that Barnett was responsible for
the sale of 8.2 grams of crack to confidential informants, subjecting
her to a 60-month mandatory minimum sentence. Her guideline range
was 46-57 months. The probation officer also recommended that Bar-
nett qualified for sentencing below the mandatory minimum sentence
under the safety valve provision. See 18 U.S.C.A. § 3553(f) (West
Supp. 1998); USSG § 5C1.2.

At Barnett's sentencing hearing, the district court agreed that the
safety valve provision applied and sentenced her within the guideline
range. However, the probation officer neglected to recommend that,
if the safety valve provision were applied, Barnett's offense level
_________________________________________________________________
3 A 4-level adjustment is available only if the offense involved 5 or
more participants or is otherwise extensive. See USSG § 3B1.1(a).

                    3
should be reduced by two levels under USSG § 2D1.1(b)(4). Barnett
also failed to object to this omission and the court did not make the
reduction. Barnett argues on appeal that this oversight requires resen-
tencing.

Because the issue was not raised in the district court, our review
is for plain error, see United States v. Olano , 507 U.S. 725, 732
(1993). Barnett must show that an error occurred, that the error was
plain, that it affected her substantial rights, and that the error should
be corrected because it seriously affects the fairness, integrity, or pub-
lic reputation of judicial proceedings. Id. at 732. Applying this test,
we conclude that plain error occurred which affected Barnett's sen-
tence.

The reduction under USSG § 2D1.1(b)(4) is required if the defen-
dant meets the five criteria listed in USSG § 5C1.2. The district court
found that Barnett met the criteria. Therefore, the failure to apply the
mandatory provision was error. Further the error affected Barnett's
substantial rights: The court's failure to reduce the offense level from
23 to 21 under subsection (b)(4) resulted in a guideline range of 46-
57 months rather than 37-46 months. Although it is possible to be
sentenced to 46 months in either sentencing range, it is not clear from
the record that the district court would have imposed the same sen-
tence using the correct range. In fact, the record indicates that the dis-
trict court, because of several mitigating factors in Barnett's personal
history, was seeking a sentence at the low end of the range when it
selected the 46-month sentence. Therefore, the error seriously affects
the fairness of Barnett's sentence and resentencing is necessary. See
Olano, 507 U.S. at 732; see also United States v. Ford, 88 F.3d 1350,
1356 (4th Cir. 1996) (sentencing under wrong guidelines range can
constitute plain error), cert. denied, 117 S.Ct. 496 (1996). Accord-
ingly, we vacate Barnett's sentence and remand for resentencing. On
remand, the district court should reduce her offense level from 23 to
21 and sentence her within the resulting guideline range of 37-46
months.

Barnett next argues on appeal that the district court erred in not
holding an evidentiary hearing concerning the government's failure to
move for a substantial assistance departure. Although Barnett cooper-
ated with the government after her arrest and detention, the govern-

                     4
ment did not move for a departure. Barnett's attorney asked the court
to inquire into the government's reasons for not making a substantial
assistance motion, and suggested that the government had breached
the plea agreement, citing United States v. Conner, 930 F.2d 1073
(4th Cir. 1991). The district court found that the plea agreement gave
the government full discretion to decide whether to move for a depar-
ture and that the agreement thus had not been breached.

In the absence of a government promise to move for a departure
under USSG § 5K1.1 in return for substantial assistance, the defen-
dant may obtain review of the government's decision only if the
defendant makes a substantial threshold showing that the govern-
ment's refusal was based on an unconstitutional motive or was not
rationally related to a legitimate government purpose. See Wade v.
United States, 504 U.S. 181, 186 (1992). Showing that the defendant
provided substantial assistance is not sufficient. See id. Barnett made
no showing that the government's refusal was based on an unconstitu-
tional motive or not rationally related to a legitimate end. Therefore,
we find no error on the part of the district court in refusing to hold
an evidentiary hearing on the matter.4

For the reasons stated herein, we affirm Scruggs' sentence. We
vacate Barnett's sentence and remand for resentencing in accord with
this opinion. 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.

No. 97-4672 -- VACATED AND REMANDED
        No. 97-4751 -- AFFIRMED
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4 Immediately following the sentencing, defense counsel questioned
Federal Bureau of Investigation Agent Joe Harmon under oath concern-
ing Barnett's assistance. Harmon testified that, when Barnett made her
proffer in October 1996, she was not willing to testify against other con-
spirators. She later changed her mind about testifying, but her guilty plea
came late in the investigation. Moreover, the information she provided
was limited and thus not particularly useful.

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