UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                 No. 98-4757

JAMES IRVING JOPLIN,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of West Virginia, at Huntington.
Robert C. Chambers, District Judge.
(CR-98-47)

Submitted: April 15, 1999

Decided: April 26, 1999

Before NIEMEYER and HAMILTON, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

J. C. Powell, POWELL LAW OFFICES, Charleston, West Virginia,
for Appellant. Rebecca A. Betts, United States Attorney, Ray M.
Shepard, Assistant United States Attorney, Huntington, West Vir-
ginia, 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Unpublished opinions are not binding precedent in this circuit.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:

James Irving Joplin pled guilty to distribution of crack cocaine. His
plea agreement provided as follows:

             nothing contained in any statement or testimony provided by
             Mr. Joplin pursuant to this agreement, or any evidence
             developed therefrom, will be used against him, directly or
             indirectly . . . in determining the applicable guideline range
             under the Federal Sentencing Guidelines . . . . Nothing con-
             tained in this agreement restricts the use of information
             obtained by the United States from an independent, legiti-
             mate source, separate and apart from any information and
             testimony provided pursuant to the agreement, in determin-
             ing the applicable guideline range . . . .

(J.A. 40).

On appeal, Joplin challenges the inclusion of an amount of crack
cocaine in his relevant conduct that was derived from the testimony
of Thomas Hill at Joplin's sentencing hearing. Hill testified before the
grand jury prior to Joplin's plea bargain and stated that Joplin
received "five to six ounces" of crack cocaine from the leader of the
relevant conspiracy. Joplin's presentence investigation report did not
include this amount of crack cocaine, and the United States objected.

At Joplin's sentencing, Hill testified, repeating his estimate of five
to six ounces of crack cocaine attributable to Joplin. Providing sup-
port for this estimate, Hill gave specific details concerning drug trans-
actions with Joplin, including location, frequency, amount of drugs
per transaction, and the procedures for packaging and payment. The
district court found Hill's testimony to be credible and included a
total of forty-five additional grams of crack cocaine in the calculation

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of Joplin's offense level.* Joplin contends that the inclusion of this
amount violated his plea agreement, because the details of the deal-
ings were not elicited until after Joplin was given immunity and were,
thus, "fruit of the poisonous tree." We disagree.

The Government was aware of Hill's grand jury testimony prior to
Joplin's plea agreement. Nothing in the plea agreement barred the
Government from further developing the details of that testimony.
Further, Joplin has offered no evidence, beyond the timeline of
events, tending to prove that his cooperation led to Hill's more
detailed testimony. Accordingly, we affirm Joplin's sentence. We dis-
pense 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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*There are approximately 28.35 grams in an ounce.

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