UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4749
BARBARA SULLENS HOWELL,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4756
MONTE F. BEAVER,
Defendant-Appellant.
Appeals from the United States District Court
for the Western District of North Carolina, at Shelby.
Lacy H. Thornburg, District Judge.
(CR-95-27)
Submitted: April 28, 1998
Decided: July 29, 1998
Before WILKINS, HAMILTON, and LUTTIG, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Kenneth H. Epple, Jr., Charlotte, North Carolina; A. James Siemens,
Asheville, North Carolina, for Appellants. Mark T. Calloway, United
States Attorney, H. Thomas Church, Assistant United States Attorney,
Charlotte, North 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Unpublished opinions are not binding precedent in this circuit.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:
Barbara Sullens Howell and Monte Francis Beaver appeal their
sentences for conspiring to possess with intent to distribute and to dis-
tribute methamphetamine in violation of 21 U.S.C.§ 846 (1994).
Finding no merit to their claims, we affirm.
At sentencing Howell moved for a downward departure from the
sentencing guidelines based on her family circumstances, medical
hardship, and drug rehabilitation. Howell argued that there was legal
authority to depart from the guidelines based on drug rehabilitation
and that she deserved such a departure. The district court then heard
Howell's testimony concerning her rehabilitation. Howell asserts that
the district court failed to consider her rehabilitation as a basis for a
downward departure because she informed the district court that the
law at the time of her sentencing forbade such departures. We have
reviewed the record and find that the district court's comments reflect
that it considered Howell's rehabilitation as a ground for a downward
departure, and thus the issue is not reviewable on appeal. See United
States v. Bayerle, 898 F.2d 28, 30-31 (4th Cir. 1990).
Beaver challenges his sentence alleging that he truthfully provided
the government with all the information he had concerning his
charged offense, and thus the district court erred in not granting relief
under the safety valve provision of U.S. Sentencing Guidelines
Manual § 5C1.2 (1997). See also 18 U.S.C. § 3553(f)(5) (1994). He
claims that the government produced no evidence that he withheld
information about his association with coconspirator Donald Reyes,
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and that the district court erred in not making factual findings to sup-
port its decision to deny relief under § 5C1.2. Thus he asserts that the
record is devoid of evidence supporting the district court's findings,
and that the court's failure to expressly state the reasons it denied
relief precludes meaningful appellate review.
We disagree. Beaver's claim that the government's argument was
premised on nothing more than mere suspicion that he withheld infor-
mation is unfounded. At sentencing, the government proffered to the
court that Agent Steven Brown was prepared to testify that Beaver
had withheld information. The record reflects that Agent Brown was
available to testify, and Beaver does not allege that the government
misrepresented the substance of Agent Brown's proffered testimony.
After accepting this proffered testimony, the court provided Beaver
with the opportunity to cross-examine Brown and he declined to do
so. The district court also took notice that Beaver chose not to testify
at Reyes' trial. Finally, Beaver admitted under cross-examination that
he had not disclosed the full extent of his involvement with Reyes.1
Thus, having viewed the record as a whole, it is clear that the district
court accepted the government's assessment that Beaver had not pro-
vided all the information he had concerning his criminal associations
with Reyes. Further, the court's comments adequately reflect what
factors it considered in reaching its decision. 2 While it would have
been preferable for the district court to articulate the specific evidence
it relied upon, a remand is not necessary for the purpose of having the
district court make its implicit finding an explicit one. See United
States v. Rigby, 896 F.2d 392, 394 (9th Cir. 1990) (noting that district
court should make clear on the record its resolution of disputed mat-
ters, but finding that case need not be remanded where the record
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1 Despite Beaver's claim that this information was not relevant to the
conspiracy and thus he had no obligation to disclose it in order to qualify
for relief under § 5C1.2, his admission that he withheld information
lends additional support to the government's contention that Beaver was
not forthright with the government.
2 Beaver's reliance on United States v. Real-Hernandez, 90 F.3d 356
(9th Cir. 1996), is misplaced. Unlike the situation in Real-Hernandez, in
this case the government told the court what information it believed that
Beaver had failed to disclose, and the district court stated in open court
its reasons for refusing to apply § 5C1.2.
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reflects no confusion as to what district court relied upon in reaching
its decision).
Beaver also alleges that the government acted improperly in failing
to notify him of its intent to object to the application of § 5C1.2.
However, at sentencing Beaver did not seek a continuance, and he
fails to note how this alleged misconduct prejudiced his ability to
obtain a departure under § 5C1.2. Thus his claim provides no basis for
relief.
Accordingly, we affirm Beaver and Howell's sentences. We dis-
pense with oral argument because the facts and legal contentions are
adequately before the court and argument would not aid the decisional
process.
AFFIRMED
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