UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                     No. 99-4192

WILLIAM KEITH PATTERSON,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Graham C. Mullen, Chief District Judge.
(CR-96-154-MU)

Submitted: November 23, 1999

Decided: January 12, 2000

Before WILKINS, MOTZ, and TRAXLER, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Robert K. Trobich, Charlotte, North Carolina, for Appellant. Mark T.
Calloway, United States Attorney, Brian Lee Whisler, Assistant
United States Attorney, Charlotte, North Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________
OPINION

PER CURIAM:

William Keith Patterson was convicted by a jury of conspiracy to
possess with intent to distribute and distribute dilaudid, see 21 U.S.C.
§ 846 (1994), and sentenced to a term of 120 months imprisonment.
He appeals his conviction and sentence, arguing that the indictment
was obtained through inaccurate testimony before the grand jury, that
the testimony of several co-conspirators should have been suppressed
as obtained improperly in violation of 18 U.S.C.§ 201(c)(2) (1994),
that without such testimony the evidence was insufficient to convict,
that the sentencing scheme for dilaudid offenses set out in U.S. Sen-
tencing Guidelines Manual § 2D1.1 (1998), violates due process, and
that the district court clearly erred in finding that he had more than
a minor role in the conspiracy. See USSG§ 3B1.2(b). We affirm.

A three-year investigation into dilaudid trafficking in western
North Carolina resulted in the indictment of forty defendants for drug,
firearms, and related offenses. Patterson was charged with one count
of conspiracy. At Patterson's trial, the two leaders of the conspiracy
and three other co-conspirators, all of whom had entered into plea
agreements, testified about Patterson's involvement in the conspiracy.
Patterson moved to dismiss the indictment, alleging that it had been
obtained through incorrect testimony which substantially influenced
the grand jury's decision, specifically, that the federal agent who testi-
fied before the grand jurors about all forty defendants failed to men-
tion that in the only controlled buy made by an informant from
Patterson, no dilaudid was delivered--the drugs turned out to be fake.
Patterson also moved to suppress the testimony of all cooperating
government witnesses who had plea agreements which offered immu-
nity from prosecution or the possibility of substantial assistance
departures, arguing that such agreements were prohibited by
§ 201(c)(2), of the federal bribery statute. The district court denied
both motions, as well as Patterson's post-conviction motions for
acquittal notwithstanding the verdict.

First, we find no error in the district court's decision not to dismiss
the indictment. The district court has discretion to dismiss an indict-
ment on the basis of an error in the grand jury proceedings when the

                     2
defendant shows that he has been prejudiced by the irregularity. See
United States v. Brewer, 1 F.3d 1430, 1433 (4th Cir. 1993) (citing
Bank of Nova Scotia v. United States, 487 U.S. 250, 254 (1988)). Pat-
terson produced no evidence that the grand jurors were substantially
influenced by the agent's failure to explain that the attempted ten-pill
controlled buy from Patterson yielded only fake dilaudid. The grand
jurors asked questions about how the investigators estimated the num-
ber of dilaudid pills attributed to each defendant, but the questions
were general in nature and did not focus on Patterson. Moreover, the
grand jurors did not indicate that they were willing to indict solely on
evidence from controlled buys.

Next, we find no merit in Patterson's contention that the govern-
ment violated 18 U.S.C. § 201(c)(2) by entering into plea agreements
which offered the possibility of a substantial assistance departure in
return for the cooperation of Summitt, Bumgarner, Somerset, and
Dover. Section 201(c)(2) provides that "whoever" offers "anything of
value" in return for testimony before a federal court should be fined
or imprisoned. Patterson argues that "whoever" includes the govern-
ment, that the testimony of his co-conspirators was thus illegally
obtained, and that suppression of their testimony was the appropriate
remedy. This Court recently rejected the same argument in United
States v. Richardson, ___ F.3d ___, 1999 WL 686892, at *4 (4th Cir.
Sept. 3, 1999). Patterson's related claim that the government's evi-
dence was insufficient to convict because it depended entirely on the
testimony of co-conspirators whose testimony should have been sup-
pressed thus also fails.

Patterson challenges on due process grounds the Drug Equivalency
Tables in Application Note 10 to USSG § 2D1.1. He contends that
there is no rational basis for providing a higher offense level for
dilaudid, a prescription drug, than for heroin. The Drug Equivalence
Tables equate one gram of heroin to one kilogram of marijuana while
one gram of dilaudid is equivalent to 2.5 kilograms of marijuana.

While no specific explanation for the distinction between dilaudid
and heroin is given in the guideline or its commentary, Application
Note 20 offers some insight into the rationale behind the Drug Equiv-
alency Tables. It states:

                    3
          The base offense levels in § 2D1.1 are either provided
          directly by the Anti-Drug Abuse Act of 1986 or are propor-
          tional to the levels established by statute, and apply to all
          unlawful trafficking. Levels 32 and 26 are the distinctions
          provided by the Anti-Drug Abuse Act; however, further
          refinement of drug amounts is essential to provide a logical
          sentencing structure for drug offenses. To determine these
          finer distinctions, the Commission consulted numerous
          practitioners, including authorities at the Drug Enforcement
          Administration, chemists, attorneys, probation officers, and
          members of the Organized Crime Drug Enforcement Task
          Forces, who also advocate the necessity of these distinc-
          tions.

USSG § 2D1.1, comment. (n.20).

Patterson offered no specific evidence to the district court to sup-
port his contention that the Sentencing Commission's considered
decision to treat dilaudid as it has is constitutionally flawed. There-
fore, we find that the district court did not err in denying his motion
for a finding of unconstitutionality.

Finally, we find that the district court did not clearly err in deter-
mining that Patterson was not less culpable than most other partici-
pants. See United States v. Withers, 100 F.3d 1142, 1147 (4th Cir.
1996) (standard of review). Application Note 3 to USSG § 3B1.2
defines a minor participant as one "who is less culpable than most
other participants, but whose role could not be described as minimal."
Patterson argues that his lesser culpability is shown by the lack of
direct evidence of his involvement, apart from one controlled buy,
during an investigation that went on for several years. However, the
testimony of Patterson's coconspirators at trial established that he
played a regular part in the conspiracy for several years.

Patterson suggests that the district court should have discredited
this testimony because it found that the witnesses had inflated the
amounts of dilaudid they bought from or sold to Patterson. However,
the district court's determination that the witnesses were credible con-
cerning the duration and extent of Patterson's involvement, apart from
the numbers of pills he bought or sold, is an issue of credibility that

                     4
is not reviewable on appeal. See United States v. Saunders, 886 F.2d
56, 60 (4th Cir. 1989).

We therefore affirm the conviction and the sentence. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.

AFFIRMED

                    5
