UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                         No. 95-5375

WILLIAM MICHAEL TAYLOR,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Winston-Salem.
N. Carlton Tilley, Jr., District Judge.
(CR-94-184)

Submitted: March 29, 1996

Decided: April 17, 1996

Before HALL and MURNAGHAN, Circuit Judges, and
CHAPMAN, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

William E. Martin, Federal Public Defender, Gregory Davis, Assis-
tant Federal Public Defender, Greensboro, North Carolina, for Appel-
lant. Walter C. Holton, Jr., United States Attorney, Clifton T. Barrett,
Assistant United States Attorney, Greensboro, North Carolina, for
Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

William Michael Taylor was convicted by a jury of possession of
heroin with intent to distribute, 21 U.S.C.A. § 841 (West 1981 &
Supp. 1995), and was sentenced to a term of 57 months imprison-
ment. He contends on appeal that the district court erred in denying
his motion to suppress evidence seized at his arrest and a statement
he made shortly after arrest, and abused its discretion in denying his
request for a jury instruction on simple possession. He argues that the
evidence was insufficient to support his conviction and that the dis-
trict court clearly erred in determining the amount of cocaine for
which he was responsible and in finding that he attempted to obstruct
justice at sentencing. For the reasons discussed below, we affirm Tay-
lor's conviction and sentence.

In July 1994, two Drug Enforcement Administration (DEA) agents
in Winston-Salem, North Carolina, began working with Matthew
Davis, who had state drug charges pending against him and was will-
ing to work in undercover operations in hopes of reducing his state
sentence. Davis told the agents that he was present when an acquaint-
ance bought half an ounce of heroin from William Taylor six months
earlier in Atlanta, and that Taylor had come to Winston-Salem two
weeks before to sell heroin and had stayed at his house. Davis said
on that occasion he saw Taylor cutting and bagging a quarter-ounce
of heroin.

On July 13, 1994, Davis had Agent Murphy listen to a voice mail
message he had received from Taylor about coming to Winston-
Salem to sell drugs again. The next day, July 14, 1994, Murphy lis-
tened in when Davis called Taylor and told Taylor he could set some-
thing up for him. Taylor said he would be coming to Winston-Salem.
Later the same day, Taylor and co-defendant Randy Burton arrived
at Davis's house and began cutting and bagging heroin in Davis's
bedroom.

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Davis arranged to sell a gram of Taylor's heroin to Agents Murphy
and Graham at a mall. However, Burton persuaded Taylor not to go
to the mall. After Davis delivered the gram of heroin to the agents,
he returned home and told Taylor his customer wanted to buy all the
heroin Taylor had. Davis by now was without transportation because
his truck had caught on fire while he was at the mall the first time.
Taking a digital scale of Taylor's, Burton drove with Davis to another
mall where they met Agent Graham posing as a heroin buyer and
delivered the heroin to him. Burton was arrested. Davis gave written
consent to a search of his house.

The agents went to the house, found Taylor in the bedroom, and
handcuffed him. A black leather zippered case (referred to an "orga-
nizer") was on the bed. In the organizer were: an address book con-
taining Davis's name and telephone number, the title to Taylor's
vehicle, and two plastic bags containing a total of 5.51 grams of her-
oin. Cutting agents and plastic bags were found on a table in the bed-
room. After being advised of his Miranda* rights, Taylor told Agent
Murphy that he was small-time but that he could supply information
about "the big guy in Atlanta," an African who was "doing kilos."
During Taylor's trial, the district court denied his motion to suppress
his statement and the items seized from the bedroom. The court also
denied Taylor's motion for a judgment of acquittal, and his request
for a jury instruction on simple possession.

Following Taylor's conviction, the probation officer recommended
that he be held responsible for 44.83 grams of heroin. This calculation
included all the heroin seized on July 14, 1994, as well as the two
prior sales Davis reported seeing Taylor make. See United States Sen-
tencing Commission, Guidelines Manual, §§ 1B1.3, 2D1.1 (Nov.
1994). The probation officer recommended an adjustment for obstruc-
tion of justice because of an outburst by Taylor at a preliminary hear-
ing, which he perceived as a threat to Agent Murphy. USSG § 3C1.1.

At Taylor's sentencing hearing, the district court decided against
the recommended obstruction of justice adjustment. Taylor then made
a long exculpatory statement. He said Davis had invited him to
Winston-Salem to do construction work, that he saw no cutting agents
_________________________________________________________________
*Miranda v. Arizona, 384 U.S. 436 (1966).

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or drug paraphernalia in the bedroom where he was arrested, that the
room was too small to contain the table where the cutting agents and
plastic bags were supposedly found, and that his organizer was too
small to hold the pill bottle in which the plastic bags of heroin were
found. The district court then informed the parties that it was consid-
ering an obstruction of justice adjustment for making material false
statements to a judge and recessed so the parties could prepare to
argue the issue.

When the hearing resumed, the government offered the transcript
of Agent Graham's trial testimony to show that the table, cutting
agents, and plastic bags were in the bedroom and that the pill bottle
containing the heroin was in the organizer. The district court ulti-
mately found that Taylor's entire statement, and the specific state-
ments which were in conflict with the agent's testimony, were false
and material in that they were intended to secure a more lenient sen-
tence. The court accordingly gave Taylor a two-level adjustment for
obstruction of justice.

We first find that the motion to suppress was properly denied. The
government opposed suppression of the evidence and the statement
on the grounds that Davis had consented to a search of his house,
including his bedroom, and that the search was incident to Taylor's
arrest. The argument in the district court focused primarily on
whether Davis's consent authorized a search of Taylor's organizer,
which was zippered shut, and the voluntariness of Taylor's statement.
Defense counsel also briefly argued that the agents lacked probable
cause to arrest Taylor, an argument the district court quickly rejected.
Davis's reliability as an informant was not questioned.

Taylor's argument on appeal, however, is that the agents lacked
probable cause to arrest him because Davis's reliability as an infor-
mant had not been previously established and the agents did not cor-
roborate the information he gave them about Taylor. A warrantless
arrest is valid if the arresting officers have probable cause to believe
the suspect has committed an offense. The officers' decision that
probable cause is present is reviewed under a totality of circumstances
test. Illinois v. Gates, 462 U.S. 213, 238 (1983). Both the quantity of
information possessed by the officers and the degree of its reliability
are factors to be considered. Alabama v. White , 496 U.S. 325, 330

                    4
(1990). The district court's determination of probable cause should be
sustained if the court had a substantial basis for its conclusion. Gates,
462 U.S. at 236; United States v. Depew, 932 F.2d 324, 327 (4th Cir.),
cert. denied, 502 U.S. 873 (1991).

The district court found that Davis's assertion to the agents that the
heroin he twice delivered to them came from Taylor was sufficient to
establish probable cause to arrest Taylor. Although the agents had not
previously worked with Davis, he was hardly an anonymous tipster.
Davis was cooperating in the hope of getting his state sentence for a
drug conviction reduced. The agents worked closely with Davis for
two days before Taylor's arrest. Davis's information about Taylor had
been corroborated to a degree by several monitored telephone calls
with Taylor and two deliveries of heroin, the second in Taylor's car
with Burton present. These circumstances were sufficient for the dis-
trict court to find that the agents had probable cause to arrest Taylor.

Next, Taylor contends that the evidence was insufficient to convict
him. A conviction must be affirmed if, taking the view most favorable
to the government, there is substantial evidence to support it. Glasser
v. United States, 315 U.S. 60, 80 (1942); United States v. Murphy, 35
F.3d 143, 148 (4th Cir.), cert. denied, ___ U.S. ___, 63 U.S.L.W.
3563 (U.S. Jan 23, 1995) (No. 94-7337). A conviction must be over-
turned if the evidence "could only lead to a finding of guilt by an
unacceptable process of raw speculation rather than by a reasoned
process of inferring guilt beyond a reasonable doubt." United States
v. Giunta, 925 F.2d 758, 766 (4th Cir. 1991). The credibility of wit-
nesses is the province of the jury, not the appellate court. United
States v. Saunders, 886 F.2d 56, 60 (4th Cir. 1989).

The government's evidence that Taylor knowingly and intention-
ally possessed heroin with the intent to distribute consisted of Davis's
testimony that he previously witnessed Taylor sell heroin, Taylor's
two attempts to sell heroin to Agent Graham via Davis, the additional
heroin, cutting agents, and packaging found in Taylor's leather orga-
nizer and on the table in the bedroom where he was arrested, and,
finally, the incriminating statement Taylor made to Agent Murphy
after his arrest.

Taylor maintains that the only evidence of his intent to distribute
heroin was Davis's testimony which was incredible or insubstantial

                    5
on its face because (1) his testimony about Taylor's prior heroin dis-
tributions was uncorroborated, (2) the 5 grams of heroin found in
Taylor's organizer was a user amount rather than a distribution
amount, and (3) it was not credible that Taylor would refuse to meet
with customers in Winston-Salem. However, the district court found
that telephone conversations with Davis and Taylor's appearance at
Davis's house with heroin corroborated Davis's testimony. While the
5 grams was a small amount of heroin, there was evidence in the
room that drugs were being packaged for sale rather than used.
Finally, Taylor's refusal to meet with an unknown buyer could be
seen as mere prudence. Moreover, Taylor's incriminating statement to
Agent Murphy corroborated Davis's story that Taylor had come to
Winston-Salem to sell heroin and was not merely a visiting heroin
user. Therefore, this argument fails.

A defendant is entitled to an instruction on a lesser-included
offense only when the evidence would support a conviction for the
lesser-included offense. United States v. Keeble , 412 U.S. 205, 208
(1993); United States v. Walker, 75 F.3d 178, 180 (4th Cir. 1996).
The proof of the distinguishing element must be sufficiently in dis-
pute that the jury could find the defendant guilty of the lesser offense
but not guilty of the greater offense. That is, the testimony on that ele-
ment must be sharply conflicting or the conclusion as to the lesser
offense must be fairly inferable from the evidence. United States v.
Baker, 985 F.2d 1248, 1259 (4th Cir. 1993), cert. denied, ___ U.S.
___, 62 U.S.L.W. 3451 (U.S. Jan 10, 1994) (No. 93-51). Any evi-
dence, however weak, which bears upon a lesser included offense will
create an entitlement to an instruction on the lesser offense. Walker,
75 F.3d at 181 n.*.

The district court refused the requested instruction because it found
that all the evidence pointed to distribution and no reasonable infer-
ence of simple possession could be drawn. As he did in the district
court, Taylor points out, first, that when Davis first met the agents at
the mall, he told them that Taylor and Burton were at his house get-
ting high. Second, he relies on the relatively small amount of heroin
seized. These facts, in isolation, might permit an inference of simple
possession. However, to find Taylor guilty of simple possession, the
jury would have had to ignore Davis's testimony that Taylor came to
Winston-Salem for the purpose of selling heroin as well as the incrim-

                     6
inating statement Taylor made after his arrest. With this evidence
before the jury, the district court did not err in refusing the requested
instruction on simple possession.

The district court's determination of the amount of drugs for which
the defendant is responsible is reviewed for clear error. United States
v. Fletcher, 74 F.3d 49, 55 (4th Cir. 1996). Taylor contends that the
quarter-ounce and half-ounce prior heroin sales (21 grams total)
which Davis said he witnessed should not have been included in the
calculation of his base offense level because Davis did not testify
about specific amounts, because the district court failed to make fact
findings concerning these disputed amounts, and because the transac-
tions were too remote in time. This argument is without merit, first,
because Davis testified about the specific amounts listed in the pre-
sentence report. Second, the district court made a finding that Davis's
testimony concerning the disputed amount was sufficiently corrobo-
rated by other evidence and thus reliable. Finally, the prior transac-
tions were part of the same course of conduct as the July 1994 sales
and thus were relevant conduct, USSG § 1B1.3(a)(2), comment. (n.9),
a finding implicit in the district court's finding that Davis and Taylor
had prior drug dealings with each other. Therefore, inclusion of the
21 grams in the sentence calculation was not clearly erroneous.

An adjustment for obstruction of justice may be given if the district
court finds that the defendant has provided materially false informa-
tion to a judge. USSG § 3C1.1, comment. (n.3(f)). "Material" evi-
dence is that which, if believed, would tend to influence or affect the
issue under determination. Id., comment. (n.5). The district court's
factual finding that the defendant has obstructed justice is reviewed
for clear error. United States v. Castner, 50 F.3d 1267, 1279 (4th Cir.
1995). The district court did not clearly err in finding that Taylor's
false statements at the first sentencing hearing were material to the
sentence to be imposed and were made with the intent of influencing
the court's sentencing decision.

We therefore affirm the conviction and the sentence. We dispense
with oral argument because the facts and legal contentions are

                     7
adequately presented in the materials before the court and argument
would not aid the decisional process.

AFFIRMED

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