UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                 No. 95-5886

MARGARET VIOLET JENKINS WILLIAMS,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                 No. 95-5900

KENNETH HATALA,
Defendant-Appellant.

Appeals from the United States District Court
for the Northern District of West Virginia, at Clarksburg.
Irene M. Keeley, District Judge.
(CR-95-2)

Submitted: February 27, 1997

Decided: March 19, 1997

Before MURNAGHAN, NIEMEYER, AND MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

R. Mike Mullens, Elkins, West Virginia; Hunt L. Charach, Federal
Public Defender, C. Cooper Fulton, Assistant Federal Public
Defender, Charleston, West Virginia, for Appellants. William D. Wil-
moth, United States Attorney, Paul T. Camilletti, Assistant United
States Attorney, Wheeling, West Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

Margaret Jenkins Williams and Kenneth Hatala entered guilty pleas
to Count One of a ten-count indictment charging them with conspir-
acy to possess with intent to distribute and to distribute dilaudid
(hydromorphone), 21 U.S.C. § 846 (1994), and related offenses. They
appeal their sentences. We affirm.

Between 1989 and 1994, Margaret Williams sought treatment for
leukemia from at least nine doctors, claiming that she had discontin-
ued chemotherapy for the disease and wanted simply to be free from
pain until she died. To many of the doctors, she provided altered cop-
ies of her medical records. She obtained prescriptions for 6985
dilaudid tablets in this way. Some of the dilaudids were used by Wil-
liams' son, Kenneth Hatala, and her daughter, Elizabeth Jenkins. The
majority of them were sold by Hatala, Jenkins, Williams, and her hus-
band, Emerson Herrod. They often accepted stolen property as pay-
ment, and Williams eventually rented a storage unit in which to keep
the overflow of stolen items. Herrod transported Williams to various
doctors and had the prescriptions filled for her. Four days before their
joint trial was scheduled, the defendants entered guilty pleas.

I. Drug Amount

Williams and Hatala were sentenced separately; both contest the
district court's determination of the amount of drugs for which they

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were accountable. The court's decision is reviewed for clear error.
United States v. McDonald, 61 F.3d 248, 255 (4th Cir. 1995).

Appellants challenge the district court's use of all 6985 dilaudid
tablets to calculate their offense levels pursuant to USSG § 2D1.1.1
Both argued unsuccessfully in the district court that the amount
should be reduced by the number of dilaudids consumed by the con-
spirators because the government had not shown specific intent to dis-
tribute those tablets. The district court discounted Herrod's and
Williams' assertions at Williams' sentencing that she took between
two and four dilaudids a day during the conspiracy 2 because Williams
showed no sign of dilaudid addiction while she was in custody and
never tested positive for dilaudid use while she was on release. More-
over, Betty Atkins, a friend of Jenkins who lived in Williams' house
for several years, testified that the only time Williams used dilaudid
was just before she went to a doctor, so that the drug would be in her
system if she were tested. While Hatala and Jenkins were known to
be users of dilaudid, the court found that any amounts they consumed
were properly included as relevant conduct.

The Ninth Circuit has held that drugs possessed for personal use
are not part of the same course of conduct or common scheme as
drugs possessed with intent to distribute, and thus are not relevant
conduct for sentencing under USSG § 1B1.3(a)(2). See United States
v. Rodriguez-Sanchez, 23 F.3d 1488, 1494-96 (9th Cir. 1994); United
States v. Kipp, 10 F.3d 1463, 1465-66 (9th Cir. 1993). However, other
circuits have held to the contrary. See United States v. Antonietti, 86
F.3d 206, 209 (11th Cir. 1996) (purchases for personal use are rele-
vant conduct in determining amount defendant knew were distributed
by conspiracy); accord United States v. Fregoso , 60 F.3d 1314, 1328
(8th Cir. 1995); United States v. Snook, 60 F.3d 394, 395 (7th Cir.
1995); United States v. Wood, 57 F.3d 913, 920 (10th Cir. 1995). The
weight of authority persuades us that the district court did not clearly
_________________________________________________________________
1 United States Sentencing Commission, Guidelines Manual (Nov.
1995).
2 Four tablets a day during the course of the conspiracy would have
amounted to more than the total amount which Williams was known to
have obtained.

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err in finding that the total number of dilaudid obtained with fraudu-
lently obtained prescriptions was relevant conduct for each defendant.

Williams also argued that Kenneth Hatala's girlfriend, Donna
Koval, used Williams' name to forge prescriptions without her knowl-
edge, and that her relevant conduct should be reduced accordingly.
However, Williams was held accountable for the number of dilaudid
tablets for which she personally obtained prescriptions, as shown by
the records of the doctors and the pharmacies which issued and filled
the prescriptions. She was not held accountable for the additional 340
dilaudid tablets which Hatala and Koval obtained without Williams'
knowledge; this number was added only to Hatala's relevant conduct.
The court also reduced Hatala's relevant conduct by the number of
tablets obtained during periods when he was incarcerated in Florida
and in West Virginia. However, the court found that he was responsi-
ble for dilaudids obtained during a period when he was employed in
Florida but returned to West Virginia regularly to sell tablets for his
mother. In sum, we find that the district court's determination of the
base offense level for each defendant was not clearly erroneous.

II. Acceptance of Responsibility

Williams contends that the district court clearly erred when it
refused to award her an adjustment for acceptance of responsibility.
USSG § 3E1.1. She argues that she earned the adjustment by negoti-
ating a plea shortly after she received copies of statements made by
witnesses the government expected to call at trial (the Jencks materi-
als). She also asserts that she was prevented from cooperating earlier
because the government would not consider a plea from one defen-
dant unless all agreed to plead guilty.

Williams admitted lying to the doctors to obtain dilaudid but
blamed her children and their friends for convincing her to pretend
that she had cancer. Because information from many sources indi-
cated that Williams was the driving force in the conspiracy, the dis-
trict court found that she was attempting to downplay her involvement
rather than making a truthful admission of her criminal conduct. We
find that the district court did not clearly err in finding that she had
not demonstrated acceptance of responsibility.

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III. Leadership Role (Williams)

Williams testified at her sentencing that her children took advan-
tage of her ability to get prescriptions for dilaudid. She disclaimed
knowledge or responsibility for sale of the tablets, although she did
acknowledge selling a few of them. She said she got no money from
the sales and claimed that she took between one and four dilaudid a
day. Based on Atkins' testimony, however, the district court found
that Williams was the organizer and leader of a conspiracy which,
including her customers, comprised more than five participants.
USSG § 3B1.1(a). The court's conclusion is supported by information
received during the investigation from Donna Koval and a number of
people who purchased dilaudid from Williams or her family. The
court did not clearly err in making the adjustment.

IV. Obstruction of Justice (Hatala)

Hatala encountered Ray Cate, a defendant in a related case, while
both were incarcerated, and told Cate that he would kill anyone who
testified against him and would kill the witness's family if he could
not get to the witness. Cate was not included on the government's
witness lists prior to Hatala's plea. Hatala argued that the threat did
not warrant an adjustment for obstruction of justice because Cate was
neither a co-defendant, a witness, or a juror in his case. See USSG
§ 3C1.1, comment. (n.3(a)) (listing examples of obstructive conduct).
The district court found that Hatala viewed Cate as a potential witness
and made the threat to prevent him from testifying. We agree that the
threat was an attempt to obstruct justice and such conduct merits an
increase under the guideline. The district court did not clearly err in
making the adjustment.

Accordingly, we affirm the sentences imposed on Williams and
Hatala. We interpret Williams' motion for appointment of counsel as
a request for new counsel. Her motion is denied. 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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