UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                  No. 96-4223

STEVEN HALL, a/k/a Shawn,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of West Virginia, at Beckley.
Elizabeth V. Hallanan, Senior District Judge.
(CR-95-73)

Submitted: April 30, 1997

Decided: September 4, 1997

Before RUSSELL and NIEMEYER, Circuit Judges, and
BUTZNER, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

David C. Smith, WHITE, SMITH, MORGAN & SCANTLEBURY,
L.C., Bluefield, West Virginia, for Appellant. Rebecca A. Betts,
United States Attorney, Philip H. Wright, Assistant United States
Attorney, Charleston, West Virginia, 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Unpublished opinions are not binding precedent in this circuit.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:

Steven Hall appeals his conviction and sentence for aiding and
abetting the distribution of cocaine base. See 21 U.S.C. § 841(a)(1)
(1994) & 18 U.S.C. § 2 (1994). Hall claims on appeal that the district
court erred in not granting immunity to two witnesses that he called
on his behalf. In addition, Hall makes several assignments of error
pertaining to the calculation of his sentence. Specifically, he charges
that the district court erred in applying the United States Sentencing
Commission, Guidelines Manual (Nov. 1993), by not diminishing his
sentence as a minor or minimal participant and in enhancing his sen-
tence for obstruction of justice. He also claims the district court erred
in calculating the total amount of cocaine base attributable to him.
Finding no merit to any of Hall's contentions, we affirm his convic-
tion and sentence.

In attacking his conviction, Hall claims that his ability to present
an effective defense was compromised by the district court's refusal
to compel the Government to grant immunity to two witnesses. Hall
and the witnesses, Chris Mitchell and Floyd Robert Williams, were
charged in the same indictment. Both Mitchell and Williams reached
a plea agreement with the Government. When Hall called them to the
stand, however, the Government explained that it had no intention of
extending immunity to them for their testimony on Hall's behalf. As
a result, both asserted their Fifth Amendment rights and refused to
testify. Hall now urges this court to hold that the district court should
have compelled the Government to extend immunity to the witnesses.

Without misconduct or overreaching on the part of the Govern-
ment, the district court cannot compel the prosecution to provide
defense witnesses with immunity for their testimony. United States v.
Abbas, 74 F.3d 506, 512 (4th Cir.), cert. denied, ___ U.S. ___, 64
U.S.L.W. 3794 (U.S. May 28, 1996) (No. 95-8821). The evidence of

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overreaching must be decisive, material and exculpatory. United
States v. Mitchell, 886 F.2d 667, 669-70 (4th Cir. 1989). There is no
evidence of either misconduct or overreaching in this case. Contrary
to Hall's suggestion on appeal, this is not a case where the Govern-
ment granted immunity to the two witnesses to obtain important
incriminating evidence and then withdrew the immunity just as they
might have provided Hall with exculpatory testimony. To the con-
trary, neither Mitchell nor Williams were a part of the Government's
case-in-chief. Furthermore, Hall's proffer of their testimony was
rather pedestrian, amounting mostly to character evidence and disput-
ing auxiliary matters. Consequently, there is no reason to conclude
that this amounts to even a minimal showing of prosecutorial miscon-
duct or overreaching, much less that Hall bore his"heavy burden" to
make out the required "decisive" showing. Mitchell, 886 F.2d at 669
(citing United States v. Gravely, 840 F.2d 1156, 1160 (4th Cir.
1988)). The district court did not err in declining to compel the Gov-
ernment to grant immunity to the witnesses.

Hall's three assignments of error in sentencing are equally without
merit. He takes exception to the district court's failure to decrease his
offense level for a minor or minimal role in the offense, U.S.S.G.
§ 3B1.2, by increasing his offense level for obstruction of justice,
U.S.S.G. § 3C1.1, and by miscalculating the amount of cocaine base
attributable to him to determine the base offense level. See U.S.S.G.
§ 2D1.1(c). In each case, he faces the formidable task of showing that
the district court committed "clear error" in considering the evidence
at sentencing. See United States v. Reavis, 48 F.3d 763, 768 (4th Cir.)
(regarding role in offense), cert. denied, ___ U.S. ___, 63 U.S.L.W.
3890 (U.S. June 19, 1995) (No. 94-9316); United States v. Puckett,
61 F.3d 1092, 1095 (4th Cir. 1995) (regarding obstruction of justice);
United States v. McDonald, 61 F.3d 248, 255 (4th Cir. 1995) (regard-
ing calculation of drug amount). This court will describe a district
court's finding as clear error only "when although there is evidence
to support it, the reviewing court on the entire evidence is left with
the definite and firm conviction that a mistake has been committed."
United States v. United States Gypsum Co., 333 U.S. 364, 395,
(1948). The evidence leaves no such conviction in this case.

Rather than portraying him as an unsuspecting observer, the evi-
dence leaves the impression that Hall "aided and abetted" this transac-

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tion in the classic sense of the phrase. Without Hall's knowing offer
of transportation, Richard Slash would have been unable to reach his
appointment to conduct the cocaine base transaction. The fact that
Hall wilfully denied at trial that he knew the purpose of Slash's trip
across town, the central issue regarding whether Hall had aided and
abetted the drug transaction, was sufficient to determine that Hall had
committed perjury and was deserving of the offense level increase for
obstruction of justice. See United States v. Dunnigan, 507 U.S. 87, 95
(1993). Finally, without revisiting the credibility of the witnesses,
United States v. Saunders, 886 F.2d 56, 60 (4th Cir. 1989), as Hall
invites us to do, there is no basis for finding clear error in the calcula-
tion of the amount of cocaine base attributable to Hall. The district
court committed no clear error at sentencing.

As there is no merit to any of Hall's contentions, we affirm the dis-
trict court's judgment and 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

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