UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 96-4495

NATHANIEL DUNLAP,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Newport News.
Raymond A. Jackson, District Judge.
(CR-95-57)

Submitted: April 29, 1997

Decided: May 27, 1997

Before MURNAGHAN, WILKINS, and HAMILTON,
Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Warren F. Keeling, Newport News, Virginia, for Appellant. Helen F.
Fahey, United States Attorney, Janet S. Reincke, Assistant United
States Attorney, Norfolk, Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

PER CURIAM:

Nathaniel Dunlap was convicted by a jury of being a felon in pos-
session of a firearm, 18 U.S.C.A. §§ 922(g)(1), 924(a)(2) (West Supp.
1997). He received the statutory maximum sentence of ten years
because the district court found that he had used the firearm in con-
nection with the commission of another offense, the fatal shooting of
Julius Jegede. See United States Sentencing Commission, Guidelines
Manual §§ 2K2.1(c)(1)(B), 2A1.1 (Nov. 1995). He contends that the
district court erred by considering unreliable hearsay evidence in
determining his sentence. We affirm.

Jegede was shot outside his house in Newport News, Virginia, on
November 9, 1994, and died of his wounds eight days later. Dunlap
was arrested the day after the shooting; he was carrying a 9 mm semi-
automatic pistol which proved to be the murder weapon. He was
charged with murder and use of a firearm in a felony in state court
but the government's key witnesses, fearing retaliation, refused to tes-
tify at the last minute, and the charges were dropped. Dunlap was
later convicted of the instant offense. At his sentencing hearing, New-
port News Police Sergeant William Reilley testified about a series of
violent incidents beginning in the late 1980's in which Dunlap and his
close associates had been implicated. In each case, witnesses who
were at first cooperative later became fearful and refused to testify.

With regard to Jegede's shooting, the officer testified that a witness
had been expected to testify that he heard Dunlap admit shooting
Jegede. The other was to testify that just before the shooting he saw
Dunlap and Cleon Avery in a truck and Paul Taylor and Damien Pru-
den in a green Diamonte automobile circle the block several times,
then go toward Jegede's house. Immediately afterward, the witness
heard shots and then found Jegede wounded. On cross-examination,
defense counsel asked the identity of the informant who said Dunlap
admitted the shooting; however, the district court sustained the gov-
ernment's objection to the question.

In making its determinations concerning sentencing factors, the
district court may consider any reliable and relevant information,

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including hearsay. See United States v. Jones , 31 F.3d 1304, 1316
(4th Cir. 1994); USSG § 6A1.3(a). Due process is satisfied if hearsay
evidence presented has more than a "minimal indicium of reliability
beyond mere allegation." United States v. Hicks, 948 F.2d 877, 878
(4th Cir. 1991).

Dunlap maintains that due process was violated because Sergeant
Reilley neither testified that the informant who said Dunlap admitted
shooting Jegede was a reliable source of information nor explained
why the court could regard his information as reliable. Dunlap is cor-
rect that Reilley did not state specifically that the informant was reli-
able. However, Officer Reilley's confidence in the informant was
shown by the fact that the informant had been scheduled to testify
against Dunlap in state court. The information supplied by the infor-
mant through Reilley met the threshold test for reliability because it
was corroborated in part by other information. Most importantly,
Dunlap had the murder weapon in his possession when he was
arrested the next day. Moreover, a different witness had seen Dunlap
near Jegede's house just before the shooting. These additional pieces
of circumstantial evidence support the informant's statement and raise
it above "mere allegation." Consequently, the district court did not
violate due process in considering it.

Dunlap also suggests that there was insufficient evidence for the
court to find that he shot Jegede. He tried to meet his burden of prov-
ing that the contested information in the presentence report concern-
ing his involvement in Jegede's murder was false or unreliable. See
United States v. Terry, 916 F.2d 157, 161 (4th Cir. 1990) (defendant's
burden of proof to rebut inaccurate or unreliable information in pre-
sentence report). However, because the district court did not find his
testimony credible, the government's evidence was sufficient for a
finding, by a preponderance of the evidence, that Dunlap shot Jegede.

The sentence is therefore affirmed. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.

AFFIRMED

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