United States of America v.  MARVIN R. ANDERSON, a/k/a Ronnie Anderson

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-4873 
MARVIN R. ANDERSON, a/k/a Ronnie
Anderson,
Defendant-Appellant. 
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-4927 
EARL WALTER COX,
Defendant-Appellant. 
Appeals from the United States District Court
for the Southern District of West Virginia, at Beckley.
Charles H. Haden II, Chief District Judge.
(CR-99-239)
Submitted: July 31, 2001
Decided: September 10, 2001
Before WILKINS, MICHAEL, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.

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COUNSEL
David O. Schles, STOWERS & ASSOCIATES, Charleston, West
Virginia; Grafton Ernest Skaggs, SKAGGS & SKAGGS, Fayetteville,
West Virginia, for Appellants. Charles T. Miller, United States Attor-
ney, 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Unpublished opinions are not binding precedent in this circuit.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:
Marvin R. Anderson and Earl Walter Cox pled guilty to conspiracy
to distribute cocaine in violation of 21 U.S.C.A. § 841(a) (West
1999), and received sentences of 121 months imprisonment and
seventy-eight months imprisonment, respectively. Anderson contests
the district court’s refusal to award him an adjustment for acceptance
of responsibility. U.S. Sentencing Guidelines Manual § 3E1.1 (2000).
Cox contends that the district court violated his right to a jury trial
and due process by determining the amount of drugs attributed to him
at sentencing by a preponderance of the evidence. We affirm.
Anderson began cooperating with authorities during the investiga-
tion of the conspiracy. However, he made conflicting statements con-
cerning the amounts of cocaine and marijuana he had received from
co-conspirator Brian Richmond to investigators, at his guilty plea
hearing, to the probation officer, and in his testimony at Richmond’s
sentencing hearing. The district court consequently reduced the
offense level recommended by the probation officer for both Rich-
mond and Cox, who were sentenced on the same day. The court
advised Anderson that it was unlikely that he would receive an adjust-
ment for acceptance of responsibility. Because Anderson’s attorney
suggested that Anderson might have suffered brain damage as a result
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of cocaine use, the court deferred Anderson’s sentencing to permit
him to be evaluated.
Anderson was subsequently at a private clinic, which found that he
had a serious memory defect caused by drug use and two head inju-
ries and that he was not competent to assist in his own legal defense.
The court then requested a second evaluation at the Federal Correc-
tional Institution at Butner, which concluded that Anderson had a
mild to moderate memory problem that had not caused him serious
difficulty, either during or prior to the evaluation.
When the district court finally sentenced Anderson, it accepted the
Butner report, rejecting the other report’s conclusions to the extent
that they were in conflict. The court found that Anderson had
obstructed justice by attributing exaggerated amounts of drugs to his
co-defendants and minimizing his own involvement in some of his
conflicting statements under oath, thus impairing the district court’s
presentence investigation in their cases. The court also declined to
reduce Anderson’s offense level for acceptance of responsibility.
Anderson did not contest the obstruction of justice adjustment. He
argues on appeal that his cooperation and guilty plea entitled him to
a reduction for acceptance of responsibility. We find that the district
court did not clearly err in declining to make the adjustment. See
USSG § 3E1.1, cmt. n.4 (directing that conduct resulting in enhance-
ment under § 3C1.1 ordinarily indicates lack of acceptance of respon-
sibility).
Cox, who sold small amounts of cocaine to investigators on two
occasions, maintains that the district court erred by increasing his
offense level on the basis of relevant conduct that the government was
not required to prove to a jury beyond a reasonable doubt. He
acknowledges that his sentence does not violate the rule set out in
Apprendi v. New Jersey, 530 U.S. 466 (2000) (holding that, other than
the fact of a prior conviction, any fact that increases the penalty for
a crime beyond the prescribed statutory maximum must be submitted
to a jury and proved beyond a reasonable doubt). He argues that
Apprendi and Jones v. United States, 526 U.S. 227 (1999), do not go
far enough.
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Because Cox did not raise this issue in the district court, we review
the claim for plain error, United States v. Olano, 507 U.S. 725, 731-
32 (1993), and find none. Sentencing factors that do not increase the
statutory maximum may be decided by the sentencing court by a pre-
ponderance of the evidence. United States v. Watts, 519 U.S. 148, 156
(1997) (per curiam) (use of preponderance of evidence standard at
sentencing satisfies due process); United States v. Kinter, 235 F.3d
192, 200-01 (4th Cir. 2000) (same), cert. denied, 121 S. Ct. 1393
(2001).
We therefore affirm the sentences. 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
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