UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 95-5683

LORI LEE KASPROWSKI,
Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of West Virginia, at Wheeling.
Frederick P. Stamp, Jr., Chief District Judge.
(CR-95-10)

Argued: November 1, 1996

Decided: December 31, 1996

Before NIEMEYER, MICHAEL, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: George Alan DuBois, Assistant Federal Public Defender,
Raleigh, North Carolina, for Appellant. Samuel Gerald Nazzaro, Jr.,
Assistant United States Attorney, Wheeling, West Virginia, for
Appellee. ON BRIEF: William D. Wilmoth, United States Attorney,
Wheeling, West Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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:

Lori Lee Kasprowski appeals from the sentence imposed by the
district court pursuant to her conviction under 21 U.S.C. §§ 841(a)(1)
& 860. Kasprowski contends that the court erred in its determination
of her relevant conduct under U.S.S.G. § 1B1.3 and in its refusal to
decrease her offense level for acceptance of responsibility under
U.S.S.G. § 3E1.1. Finding no error in the district court's determina-
tions, we affirm.

I.

In 1994 Kasprowski lived in a Wheeling, West Virginia, apartment
with Raymond Prayear, Sr., her boyfriend. During the summer of
1994 Prayear became the target of an investigation by the Ohio Val-
ley Drug Task Force, a law enforcement team consisting of local,
state, and federal agents. This task force sent a confidential informant
to Prayear and Kasprowski's apartment on July 26, 1994. The infor-
mant was supplied with $260: $60 to pay off a past debt to Prayear
and $200 to purchase crack cocaine from Prayear. However, when the
informant arrived at the apartment only Kasprowski was at home.
Kasprowski agreed to handle the transaction; she accepted the money
and gave the informant 1.49 grams of crack cocaine, which she
retrieved from a dresser drawer in the bedroom. In a discussion taped
by the informant, Kasprowski acknowledged that she was "taking the
risk" by conducting the drug sale without Prayear. Additionally, Kas-
prowski indicated that she counted the money from Prayear's drug
transactions and that Prayear had directed her to"take care of busi-
ness" during his absence.

Kasprowski was not present for the informant's next purchase from
Prayear on July 28. However, she was in the apartment when the
informant returned on August 1 and bought $200 worth of crack

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cocaine from Prayear. Although Kasprowski played no active role in
the August 1 transaction, she told the informant that she planned to
give certain individuals code numbers for use with Prayear's beeper.
A final drug transaction took place at the apartment on August 2. The
informant, along with an undercover state trooper, purchased 4.65
grams of crack cocaine from Prayear. Kasprowski again was present
but did not take part in the sale. The informant was wired for the
transactions of August 1 and 2.

On April 18, 1995, Kasprowski was indicted on two counts: con-
spiracy to possess crack cocaine with the intent to distribute, see 21
U.S.C. § 841(a)(1), and aiding or abetting the distribution of crack
cocaine within 1,000 feet of a playground, see 21 U.S.C. §§ 841(a)(1)
& 860. Kasprowski entered into a plea agreement with the govern-
ment on June 6, 1995. According to the agreement, Kasprowski
would plead guilty to the aiding or abetting count, and the govern-
ment would move to dismiss the conspiracy count. The parties also
stipulated that the total relevant conduct for Kasprowski would be at
least one but not more than two grams of crack cocaine. However, the
agreement expressly acknowledged that the court would not be bound
by this stipulation.

After Kasprowski's plea, the probation officer prepared a presen-
tence report (PSR). Two matters in the PSR were (and still are) con-
tested by Kasprowski. First, the officer reported that the relevant
conduct for Kasprowski's offense should include not only the July 26
sale made by Kasprowski but also the August 1 and 2 sales when she
was present. The addition of the August sales changed the underlying
amount of crack cocaine from 1.49 grams to 7.72 grams and changed
Kasprowski's initial base offense level from 18 to 26.1 Second, the
officer refused to recommend a downward departure for acceptance
of responsibility because Kasprowski had violated conditions of her
pretrial release. While on release Kasprowski had tested positive for
cocaine metabolites, had failed to report to the pretrial services offi-
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1 The probation officer then added an extra two levels, pursuant to
U.S.S.G. § 2D1.2(a)(1), because the sale took place within 1,000 feet of
a protected area.

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cer, had failed to report a change of her address, and had left her
home district without permission.2

Both Kasprowski and the government objected to the PSR's rele-
vant conduct determination, and Kasprowski objected because no
adjustment for acceptance of responsibility was recommended. The
probation officer responded to the objections in a written report, but
he declined to revise the PSR. At the sentencing hearing, Kasprowski
presented testimony by Prayear, who claimed that Kasprowski's
involvement in his drug-trafficking business was limited to the July
26 transaction. After considering the evidence, including the tapes of
the several transactions, the district court confirmed the findings in
the PSR as to relevant conduct and the failure to accept responsibility.
The court did depart downward four levels (from 28 to 24) because
the informant's tape recordings of the August 1 and 2 sales were not
made available to Kasprowski until the date of sentencing. The court
sentenced Kasprowski to 51 months in prison, and she now appeals
her sentence.

II.

Kasprowski argues that the district court erred by (a) miscalculat-
ing her underlying relevant conduct and (b) refusing to depart down-
ward based on her acceptance of responsibility.

A.

We turn first to the relevant conduct issue. In order to determine
the base offense level for a crime involving drug distribution, the sen-
tencing court must determine the quantity of drugs involved. See
U.S.S.G. § 2D1.1(c). The court derives the quantity of drugs from the
defendant's "relevant conduct." According to U.S.S.G. § 1B1.3(a)(1),
relevant conduct includes all acts committed by the defendant, as well
as "all reasonably foreseeable acts and omissions of others in further-
ance of the jointly undertaken criminal activity." A "jointly
undertaken criminal activity" is defined as "a criminal plan, scheme,
endeavor, or enterprise undertaken by the defendant in concert with
_________________________________________________________________
2 As a result of these violations, Kasprowski's pretrial release had been
revoked and she had been taken into custody.

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others, whether or not charged as a conspiracy." U.S.S.G.
§ 1B1.3(a)(1)(B). The Guidelines Commentary provides this further
instruction for crimes involving contraband:

          [T]he defendant is accountable for all quantities of contra-
          band with which he was directly involved and, in the case
          of a jointly undertaken criminal activity, all reasonably fore-
          seeable quantities of contraband that were within the scope
          of the criminal activity that he jointly undertook.

Id., comment. n. 2. Factual findings made by the sentencing court
regarding relevant conduct are reviewed only for clear error. See
United States v. D'Anjou, 16 F.3d 604, 614 (4th Cir. 1994).

Kasprowski does not dispute that her sale of the 1.49 grams to the
informant on July 26 constitutes relevant conduct, nor does she argue
that the August 1 and 2 transactions were not foreseeable. Kasprowski
does contend, however, that the district court clearly erred in finding
her to have engaged in a "jointly undertaken criminal activity" with
Prayear. According to Kasprowski, the July 26 sale was an atypical,
singular incident that began and ended her association with Prayear's
drug distribution activities. Kasprowski cites to the testimony of Pra-
year, who said that the drugs were his alone and that Kasprowski
"wasn't part of any conspiracy to sell any drugs." Although she
admits to conducting the July 26 transaction, Kasprowski claims that
this sale alone is insufficient to create a "jointly undertaken criminal
activity." In support of this claim, Kasprowski cites to the following
example provided in the application notes for § 1B1.3:

          Defendant O knows about her boyfriend's ongoing drug-
          trafficking activity, but agrees to participate on only one
          occasion by making a delivery for him at his request when
          he was ill. Defendant O is accountable under subsection
          (a)(1)(A) for the drug quantity involved on that one occa-
          sion. Defendant O is not accountable for the other drug sales
          made by her boyfriend because those sales were not in fur-
          therance of her jointly undertaken criminal activity (i.e., the
          one delivery).

U.S.S.G. § 1B1.3, comment. n. 2(c)(5).

                    5
If the evidence was clear that Kasprowski had "agree[d] to partici-
pate on only one occasion," her relevant conduct would be limited to
the July 26 sale. However, the record reflects that Kasprowski's
involvement in Prayear's drug distribution extended beyond that one
sale. Tape recordings of the July 26 and August 1 sales demonstrate
that Kasprowski was actively involved in Prayear's drug trafficking.
During the July 26 sale Kasprowski discussed with the informant how
she was "taking the risk" by distributing crack cocaine in Prayear's
absence. Kasprowski also claimed that she could make more money
selling crack than Prayear, since Prayear would smoke more of the
product than Kasprowski would. Kasprowski's boast that "I count the
money, I keep it counted" shows direct involvement in the overall dis-
tribution scheme, and her acknowledgement that Prayear asked her to
"stay [in the apartment] and take care of business" shows that Prayear
relied upon her assistance. Kasprowski's comments during the August
1 transaction also reveal her complicity in Prayear's distribution
scheme. Kasprowski indicated during that transaction that Prayear
possessed a beeper and that she intended to give out code numbers for
use with that beeper. The district court noted,"I think that to hold that
the discussions about beepers in this case were not directed towards
drug trafficking or drug dealing would be just, quite simply, blinking
at reality."

These conversations indicate that Kasprowski, at least from July 26
to August 2, jointly undertook with Prayear to distribute 7.72 grams
of cocaine base. Accordingly, the district court did not clearly err in
its determination "that the probation officer's findings of relevant
conduct, not only on July 26, 1994, but on August 1, 1994, and
August 2, 1994, are supported by the evidence." The fact that the gov-
ernment and Kasprowski stipulated to relevant conduct of a lesser
amount ("at least 1 but less than 2 grams" of crack) does not require
a different result, as the plea agreement itself acknowledges. See
U.S.S.G. § 6B1.4(d) ("The court is not bound by the stipulation
. . . ."); United States v. Williams, 880 F.2d 804, 806 (4th Cir. 1989)
("The sentencing judge is not bound to a particular sentence under the
plea agreement . . . ."). Neither is it dispositive that the underlying
charge is one of distribution, rather than conspiracy. See U.S.S.G.
§ 1B1.3(a)(1)(A) (noting that jointly undertaken criminal activity is
relevant conduct "whether or not charged as conspiracy"); United
States v. Ellis, 975 F.2d 1061, 1067 (4th Cir. 1992) ("[A] district court

                     6
can, in sentencing, consider quantities of cocaine involved in a con-
spiracy even when the defendant pled guilty only to possession with
intent to distribute and even though the quantity expressed in the
count to which he pled guilty was smaller . . . ."), cert. denied, 507
U.S. 945 (1993). In sum, the district court did not err in counting the
three transactions as relevant conduct under U.S.S.G. § 1B1.3.

B.

Kasprowski also claims that the district court erroneously failed to
grant a downward departure for acceptance of responsibility. Section
3E1.1 of the Sentencing Guidelines provides for a two-level decrease
in the offense level if the defendant "clearly demonstrates acceptance
of responsibility for his offense." U.S.S.G.§ 3E1.1(a). The commen-
tary for this section lists several factors that may be considered in
determining whether a defendant has accepted responsibility. These
factors include "truthfully admitting the conduct comprising the
offense" as well as "voluntary termination or withdrawal from crimi-
nal conduct or associations." U.S.S.G. § 3E1.1, comment. n. 1(a),(b).
We have determined that the use of illegal drugs after the defendant
has been charged "is sufficient to support [a] . . . decision not to
depart downward." United States v. Underwood , 970 F.2d 1336, 1339
(4th Cir. 1992); see also United States v. Scroggins, 880 F.2d 1204,
1216 (11th Cir. 1989) ("We believe that the district court acted well
within its discretion in concluding that appellant's continuing use of
cocaine cast doubt on the sincerity of his avowed acceptance of
responsibility.").

Here, the district court summarized its reasons for declining to
depart as follows:

          I think that [Underwood] stands for and the Application
          Notes stand for the principle that violating the law after a
          guilty plea and the conviction is an indication, probably a
          clear one, that the defendant has, unfortunately, not accepted
          responsibility because possession and use of a controlled
          substance is a crime and is criminal conduct.

Kasprowski acknowledges that she tested positive for cocaine while
on pretrial release. She argues, however, that her positive test is not

                     7
dispositive as to the acceptance of responsibility determination. See
e.g., Scroggins, 880 F.2d at 1216 ("[A] defendant's continued use of
narcotics does not preclude an adjustment for acceptance of responsi-
bility . . . ."). Nevertheless, since Underwood made it clear that a posi-
tive drug test is "sufficient" to deny the departure, the district court
did not err in refusing to depart downward.3

III.

Because the district court did not err in its determinations about
Kasprowski's relevant conduct and her failure to accept responsibil-
ity, we affirm the sentence.

AFFIRMED
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3 Although the district court only explicitly discussed Kasprowski's
positive drug test, Kasprowski also, while on pretrial release, failed to
report to the pretrial services officer, failed to report a change of address,
and left her home district without permission.

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