UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                     No. 99-4493

NATHANIEL RENARD CHILES,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Charlottesville.
James H. Michael, Jr., Senior District Judge.
(CR-94-7)

Submitted: June 27, 2000

Decided: July 18, 2000

Before WIDENER, WILKINS, and WILLIAMS, Circuit Judges.

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Affirmed and remanded by unpublished per curiam opinion.

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COUNSEL

Margaret McLeod Cain, MARGARET MCLEOD CAIN, P.C., Char-
lottesville, Virginia, for Appellant. Robert P. Crouch, Jr., United
States Attorney, Joseph W.H. Mott, Assistant United States Attorney,
Roanoke, Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

PER CURIAM:

Nathaniel R. Chiles pled guilty to conspiracy to distribute cocaine
and money laundering. In his plea agreement, Chiles agreed that he
would not appeal the court's application of the sentencing guidelines
to the facts of his case. The court sentenced Chiles to 148 months
imprisonment and five years of supervised release and directed that
Chiles be given credit for 118 days that he spent in custody in Greene
County on a related count.1 The court did not inform Chiles that he
had a right to appeal.

Chiles filed a 28 U.S.C.A. § 2255 (West 1994 & Supp. 2000)
motion, raising a number of claims, including failure of the district
court to notify him of his right to appeal as required by Fed. R. Crim.
P. 32. The district court denied the motion. On appeal, we found that
Chiles specifically waived only his right to challenge guidelines
issues decided after a full and fair hearing. Because Chiles explicitly
raised claims that did not fall into the scope of the waiver and because
Chiles challenged the due process afforded at his sentencing hearing,
we remanded the case with instructions to vacate Chiles' sentence and
resentence him with proper notification of his appeal rights.

At his second sentencing hearing in June 1999, Chiles moved for
a continuance to subpoena witnesses to challenge the four-level
enhancement for his role in the conspiracy. The district court denied
the motion as untimely. Chiles' counsel did not raise any further
objections to this enhancement. The district court overruled Chiles'
objection and enhanced his sentence by four levels for his leadership
role in the conspiracy.

The district court then imposed a sentence of 136 months imprison-
ment and five years supervised release. The district court again
_________________________________________________________________
1 The Greene County conviction was for possession of cocaine and was
fully discharged before Chiles was indicted on the federal charges. The
conduct underlying this state conviction was included as relevant con-
duct in determining Chiles' federal sentence.

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directed that Chiles be given 118 days of credit for time spent in state
custody on a related charge. Chiles filed a timely notice of appeal.

I.

Chiles first asserts that the district court erred in ordering the
Bureau of Prisons ("BOP") to grant him a 118-day sentence credit
because the BOP lacks the authority to give such credit. Instead,
Chiles contends, the district court should have reduced his sentence
by 118 days.

Chiles is correct that the district court lacked authority to order the
BOP to credit his sentence. See United States v. Wilson, 503 U.S. 329,
334 (1992) (holding that district court is not authorized to compute
credit at sentencing); see also United States v. Hornick, 815 F.2d
1156, 1160 (7th Cir. 1987) (judge's direction to BOP is merely an
advisory opinion). In addition, the BOP lacked authorization to give
Chiles credit on his federal sentence for time that had been credited
against a prior state sentence. See 18 U.S.C. § 3585(b) (1994). There-
fore, because the 118 days at issue were fully credited to Chiles' state
sentence, the district court's structure of Chiles' sentence was
improper.

Moreover, the district court could not have reduced Chiles' sen-
tence accordingly, as Chiles now requests. Although Chiles contends
that Application Note 2 to U.S. Sentencing Guidelines Manual
§ 5G1.3 (1993) entitles him to sentencing credit, this section only pro-
vides for sentence reduction for the portion of a related, undischarged
state sentence that has already been served. However, if the defendant
has completed his state prison term before the federal sentence is
imposed, § 5G1.3 does not apply. See United States v. McHan, 101
F.3d 1027, 1040 (4th Cir. 1996). In addition, we have found that a
downward departure is not available under these circumstances. See
id. Thus, the district court's instructions that Chiles be given sentenc-
ing credit exceeded the court's authority as a matter of law and should
be expunged from the judgment. See United States v. Labeille-Soto,
163 F.3d 93, 99-100 (2d Cir. 1998).

II.

Chiles next asserts that the district court improperly used the 1990
and 1993 versions of the Sentencing Guidelines Manual in calculating

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his sentence. Chiles was first sentenced in May 1994 and later in June
1999, and he argues that the 1994 edition of the manual, including an
amendment to § 3B1.1(a), effective November 1, 1993, should have
been applied at his sentencings. However, the 1993 version of the
Sentencing Guidelines Manual includes amendments effective
November 1, 1993, and the 1994 version would not have been pub-
lished until after November 1994, subsequent to Chiles' initial sen-
tencing. Chiles does not allege any further amendments to any
relevant section of the manual between his first and second sentencing
hearings, and thus, the proper version of the guidelines were applied
to Chiles' sentence.

III.

Next, Chiles contends that the Probation Office violated Rule 32,
which at the time of Chiles' 1994 sentencing required that the presen-
tence report ("PSR") be made available to the defendant at least ten
days before the court imposed sentence. The Probation Officer filed
the PSR well before sentencing, but filed an addendum addressing
Chiles' objections on May 26, 1994, five days before Chiles' initial
sentencing.

However, Rule 32, by its terms, applied only to the initial filing of
the PSR and did not address time limitations for filing addendums
addressing objections by the defendant. In any event, Chiles appeals
from his June 1999 sentencing. Therefore, even if Chiles were entitled
to receive the response to his objections ten days before sentencing,
that requirement has clearly been met. The addendum was filed on
May 26, 1994, and the sentencing at issue did not occur until June
1999, over five years later. Accordingly, this claim is utterly without
merit.

IV.

Chiles contends that the district court improperly enhanced his sen-
tence based on a finding that there were a sufficient number of partici-
pants in the "extensive" conspiracy.2 According to Chiles, this finding
_________________________________________________________________
2 Chiles contends that his waiver of the right to appeal guidelines issues
was ineffective because he was not provided with a full and fair sentenc-

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is insufficient to support the enhancement absent a factual finding that
Chiles was a leader or organizer of at least one person.

Guideline section 3B1.1(a) provides for a four-level sentencing
enhancement only if the defendant was both an organizer or leader of
criminal activity and the activity involved five or more participants
or was otherwise extensive. See USSG § 3B1.1, comment. (n.2)
(enhancement is only appropriate if the defendant was organizer or
leader of one or more other participants). While it is true that, at sen-
tencing, the district court did not discuss whether Chiles was a leader
or organizer and only talked about the number of persons involved,
the court was responding to Chiles' specific objections regarding his
purported lack of knowledge of certain co-conspirators. The district
court merely pointed out that, even discounting the persons Chiles
objected to, there were a sufficient number of co-conspirators to sup-
port the enhancement. Further, the district court noted that Chiles
need not know all the conspirators, so long as each was a participant.
Because Chiles did not challenge the participation of the conspirators
that were unknown to him and did not challenge his role as an orga-
nizer, the district court did not address these issues.

Nonetheless, the district court adopted the PSR which recom-
mended that Chiles was a leader or organizer under USSG § 3B1.1(a).
On appeal, Chiles contends for the first time that there is no evidence
that he led or organized anybody in the conspiracy. Chiles had the
burden of showing that the information in the presentence report
which he disputed was unreliable or inaccurate. See United States v.
Terry, 916 F.2d 157, 162 (4th Cir. 1990). Chiles presented no evi-
dence and did not testify at either sentencing hearing. Because Chiles
raises this claim for the first time on appeal, it is reviewed only for
plain error. See Fed. R. Crim. P. 52(b).
_________________________________________________________________

ing hearing, which was an explicit condition of his waiver. While the
Government contends that Chiles did have a full and fair hearing, it con-
cedes that the waiver was ineffective because Chiles' guilty plea collo-
quy in 1994 was insufficient to determine whether the waiver was
knowing and voluntary. Because both parties agree that the waiver was
ineffective (albeit for different reasons), we will address the merits of
Chiles' guidelines challenge.

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Enhancements for a defendant's leadership role in a conspiracy
under § 3B1.1(a) have been applied where the defendant was a major
supplier of drugs for distribution and redistribution by other members
of the conspiracy. See United States v. Banks , 10 F.3d 1044, 1057
(4th Cir. 1993); see also United States v. Smith , 914 F.2d 565, 570
(4th Cir. 1990) (evidence that co-conspirators distributed drugs
together, but defendant claimed larger share). The PSR described a
large drug conspiracy in which Chiles was the main supplier, distrib-
uting drugs to other members of the conspiracy for redistribution and
arranging for later payment. The PSR specifically alleges that one
participant worked as Chiles' lieutenant, distributing drugs to dealers
and wiring Chiles the money collected. Thus, there was no plain error.

Based on the foregoing, we affirm Chiles' sentence and remand for
expungement of the direction to the BOP to grant Chiles sentence
credit. Because all issues Chiles seeks to raise are covered by coun-
sel's brief, we deny Chiles' motion to file a pro se brief. 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 AND REMANDED

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