UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 02-4043
MICHAEL DWAYNE PHELPS,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Virginia, at Lynchburg.
Norman K. Moon, District Judge.
(CR-01-39)
Submitted: July 19, 2002
Decided: August 6, 2002
Before WIDENER, WILKINS, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
John E. Falcone, SMITH & FALCONE, Lynchburg, Virginia, for
Appellant. John L. Brownlee, United States Attorney, Ray B. Fitzger-
ald, Jr., Assistant United States Attorney, Charlottesville, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. PHELPS
OPINION
PER CURIAM:
Michael Dwayne Phelps appeals the sentence of seventy-eight
months imprisonment he received after his guilty plea to possession
of cocaine base (crack) with intent to distribute in violation of 21
U.S.C. § 841(a) (2000). Phelps contends on appeal that the district
court erred in determining that his relevant conduct included 35-50
grams of crack, U.S. Sentencing Guidelines Manual §§ 1B1.3, 2D1.1
(2001), and that the court erred in finding that his conviction rendered
him ineligible for federal benefits for five years under 21 U.S.C.
§ 862(a)(1)(A) (2000). We affirm.
Phelps was arrested on November 30, 2000, while in possession of
4.6 grams of crack. His girlfriend, Tomia Taylor, was in the car with
Phelps when he was arrested and was carrying three plastic corner
bags containing 20.4 grams of crack. A search of the residence they
shared resulted in the seizure of another 50 grams of crack. It
belonged to Taylor’s half-sister, Delia "Peaches" Jones, who had been
Phelps’ source of crack for several months. Phelps admitted at the
sentencing hearing that he sold two to three ounces (56.7 to 85.05
grams) of crack over a period of two or three months before his arrest.
Although he stipulated that his relevant conduct was more than four
grams and less than fifty grams of crack, Phelps argued that no more
than the 4.6 grams he possessed at arrest should be attributed to him
because the crack found in the house did not belong to him. He also
asserted that it would be unfair to credit him with the cocaine found
in his house because the government had reached agreements with
other defendants, which attributed to each of them only the quantities
involved in specific transactions. To the latter argument, the govern-
ment responded that Phelps was not being treated differently because
each of his co-defendants pleaded guilty to the most serious count
charged* and was held responsible for all the crack purchased from
*Presumably, the government attorney meant the most serious sub-
stantive count as none of the defendants pleaded guilty to the conspiracy
count.
UNITED STATES v. PHELPS 3
him or otherwise acquired from him, while Phelps similarly was held
responsible for the crack he possessed at his arrest and the crack that
was in his house, available to him for distribution. The district court
concluded that Phelps was responsible for nearly fifty grams of crack,
and adopted the offense level calculation recommended in the presen-
tence report.
The district court’s determination of the drug amount attributable
to a defendant is generally a factual issue reviewed for clear error.
United States v. Randall, 171 F.3d 195, 210 (4th Cir. 1999). Phelps
contends that the district court erred in determining his relevant con-
duct because his sentence was only slightly shorter than the sentence
given to the kingpin in the conspiracy, Richard Slayton, and longer
than those imposed on most other defendants. Consequently, he
argues, his sentence is disproportionate to the offense and violates the
principle set out in Solem v. Helm, 463 U.S. 277, 290 (1983), that "a
criminal sentence must be proportionate to the crime for which the
defendant has been committed." Because Phelps did not raise the
issue of proportionality under Solem in the district court, it is
reviewed under the plain error standard. United States v. Olano, 507
U.S. 725, 731-32 (1993).
This court has ruled that "proportionality review is not available for
any sentence less than life imprisonment without the possibility of
parole." United States v. Ming Hong, 242 F.3d 528, 532 & n.3 (4th
Cir.), cert. denied, 122 S. Ct. 60 (2001). Although Phelps argues that
Ming Hong is not consistent with this Court’s statement in United
States v. D’Anjou, 16 F.3d 604, 612 (4th Cir. 1994), that "extensive
proportionality analysis is required only in those cases involving sen-
tences without parole" (emphasis added), and does not foreclose such
analysis in the instant case, we find that the district court did not
plainly err in not conducting a proportionality review sua sponte.
Given that Phelps admitted selling two to three ounces of crack over
a period of several months, his based offense level was properly com-
puted and his seventy-eight-month sentence was not disproportionate
to his offense.
Phelps seeks support from the Ninth Circuit’s decision in United
States v. Daas, 198 F.3d 1167, 1180-81 (9th Cir. 1999) (remanding
for further proceedings where district court mistakenly believed it
4 UNITED STATES v. PHELPS
lacked authority to depart downward to correct disparity between
defendant’s sentence and sentences of co-defendants), cert. denied,
531 U.S. 999 (2000), and United States v. Lieberman, 971 F.2d 989,
996-99 (3d Cir. 1992) (district court has authority to depart downward
to correct sentencing disparities caused by government’s manipula-
tion of the charges). However, this court has held that the sentencing
court may not depart based on disparity between the defendant’s sen-
tence and the sentences of his co-defendants. United States v. Broth-
ers Constr. Co., 219 F.3d 300, 319 (4th Cir.), cert. denied, 531 U.S.
1037 (2000); United States v. Davis, 98 F.3d 141, 145 (4th Cir. 1996).
Moreover, Phelps did not request a departure on this ground. His pro-
portionality argument was focused on lowering his offense level. We
cannot say that Phelps has demonstrated error of any kind.
Phelps also argues on appeal that the five-year ineligibility provi-
sion of 21 U.S.C. § 862(a)(1)(A) does not apply in his case. The pro-
bation officer noted in the presentence report that "[u]pon a first
conviction for distribution of a controlled substance, a defendant may
be declared ineligible for any or all federal benefits for up to 5 years"
under 21 U.S.C. § 862(a)(1)(A). Phelps objected that he had not been
convicted of distribution, but of possession, and, therefore, the one-
year ineligibility provision in § 862(b) should apply. At the sentenc-
ing hearing, the parties noted initially that the issue remained unre-
solved, but neither side addressed it further. The district court did not
find that Phelps was ineligible for federal benefits for any period
when sentence was imposed.
Under either subsection of § 862, the denial of benefits is not auto-
matic, but is discretionary with the sentencing court. Section
862(a)(1)(A) provides that benefits may be denied, "at the discretion
of the court . . . ." Here, the presentence report did not recommend
that the court deny benefits for five years in Phelps’s case, but simply
noted that the court had the discretion to do so. At sentencing, the dis-
trict court did not exercise its discretion to impose any sanction under
§ 862. The court’s adoption of the presentence report did not operate
to impose a five-year sanction in the absence of any indication by the
district court that it wished to impose such a sanction. Therefore, we
need not address Phelps’ argument that the one-year denial of benefits
provision applies to him rather than the five-year provision.
UNITED STATES v. PHELPS 5
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