UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                      No. 94-5884

ELVIN FLORIS, a/k/a Elliott Thomas,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Greenville.
Terrence W. Boyle, District Judge.
(CR-93-62)

Submitted: February 7, 1996

Decided: February 29, 1996

Before MURNAGHAN and WILLIAMS, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Rudolph A. Ashton, III, SUMRELL, SUGG, CARMICHAEL &
ASHTON, P.A., New Bern, North Carolina, for Appellant. Janice
McKenzie Cole, United States Attorney, J. Douglas McCullough,
Assistant United States Attorney, Raleigh, North Carolina, for Appel-
lee.

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Unpublished opinions are not binding precedent in this circuit.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:

Elvin Floris pled guilty to one count of distribution of crack
cocaine, 21 U.S.C.A. § 841 (West 1981 & Supp. 1995). His plea
agreement contained a stipulation, not binding on the district court,
that his relevant conduct, USSG § 1B1.3,1 was 3.1 grams of crack, the
amount distributed in the count of conviction. At his sentencing hear-
ing, the district court determined that Floris was an organizer or
leader in a crack conspiracy, USSG § 3B1.1(a), that his relevant con-
duct included all the crack sold by the other members of the conspir-
acy, USSG § 2D1.1, and that he had not accepted responsibility for
his offense, USSG § 3E1.1. Floris was sentenced to a term of 240
months. He appeals his sentence, contending that the district court
erred in considering conduct outside that stipulated in the plea agree-
ment, that the court made inadequate findings concerning the drug
amount, and that the court clearly erred in finding that he was a leader
and that he had not accepted responsibility. We affirm.

The record discloses that the probation officer initially received
information from the government relating only to the controlled buy
which was the basis for the count of conviction. The probation officer
then sought additional information about the offense and was pro-
vided with investigative documents which included statements from
cooperating witnesses and the debriefing of co-conspirator Valerie
Gibbs. In the presentence report, the probation officer recommended
that Floris be held accountable to 6.4 kilograms of crack.

Floris objected to the consideration of any amounts beyond the 3.1
grams of crack stipulated in the plea agreement, and suggested that
Gibbs was an unreliable source of information. At the sentencing
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1 United States Sentencing Commission, Guidelines Manual (Nov.
1995).

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hearing, Floris argued that the district court was bound by the stipula-
tion; he presented no evidence. The district court determined that the
plea agreement had not been violated by the probation officer's acqui-
sition of further information about the offense and that Floris benefit-
ted from the plea agreement by having a lower statutory maximum
sentence than would apply had he been charged with conspiracy. The
court found that Floris was responsible for at least 6.4 kilograms of
crack as recommended by the probation officer, and that Floris had
not accepted responsibility because he refused to admit the full scope
of his involvement in the offense.

After hearing Floris's exculpatory personal statement, the district
court asked the probation officer what evidence was available con-
cerning his role in the conspiracy. The probation officer informed the
court that Floris had come from New York to North Carolina in 1990
with Leonard Normil (a/k/a/ Colin Courtney Atwell) 2 to sell crack.
Eight known individuals sold crack for them, a number of whom
cooperated with authorities, including Gibbs. Floris stored his crack
at the home of one of them. In 1991, Floris pled no contest in state
court to a cocaine charge and was given a suspended sentence. In
1992 and 1993, Floris, Atwell, and Henderson were distributing sig-
nificant amounts of crack daily to others for sale on the street. On the
basis of this information, the district court found that Floris's role in
the conspiracy was that of a leader and organizer and gave him a four-
level adjustment.

First, we find that the district court did not err in considering infor-
mation outside the stipulation. Under USSG § 6B1.4(d), and by the
terms of the plea agreement, the stipulation was not binding on the
court. The sentencing court may consider any relevant and reliable
information. USSG § 6A1.3(a); United States v. Jones, 31 F.3d 1304,
1316 (4th Cir. 1994). A defendant who contests information in the
presentence report has the burden of showing that it is inaccurate or
unreliable. United States v. Terry, 916 F.2d 157, 162 (4th Cir. 1990).
Floris did not attempt to meet this burden, choosing instead to rely on
the stipulation. The government did not ask the court to attribute a
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2 David Henderson was identified in the presentence report as the third
organizer and leader of the offense; he also came from New York in
1990.

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higher amount of crack to Floris, and it did not violate the plea agree-
ment by providing information requested by the probation officer or
by answering the district court's questions concerning the scope of
relevant conduct for a defendant involved in a conspiracy.

In the absence of any evidence to the contrary, the district court's
acceptance of the recommended findings contained in the presentence
report concerning the amount of crack for which Floris was responsi-
ble constituted a clear and adequate finding. See United States v.
Walker, 29 F.3d 908, 911-12 (4th Cir. 1994). The court did not clearly
err in finding that Floris had not accepted responsibility; he dis-
avowed any involvement beyond the count of conviction, thus deny-
ing relevant conduct which the court had determined to be true. USSG
§ 3E1.1, comment. (n.1).

Finally, the district court has the latitude to make findings different
from those recommended in the presentence report, even on a matter
to which there has been no objection. The district court here exercised
its discretion to inquire into Floris's role in the offense. Considering
the information before the court, we cannot say that the finding that
Floris was a leader and organizer was clearly erroneous.

The sentence imposed by the district court is therefore affirmed.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.

AFFIRMED

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