UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                     No. 97-4716

ALBERT LAMAR WELLS, III,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Charleston.
C. Weston Houck, Chief District Judge.
(CR-93-353)

Submitted: November 3, 1998

Decided: January 4, 1999

Before ERVIN, WILKINS, and NIEMEYER, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

David A. Bornhorst, North Charleston, South Carolina, for Appellant.
J. Rene Josey, United States Attorney, Mary Gordon Baker, Assistant
United States Attorney, Columbia, South Carolina, 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Unpublished opinions are not binding precedent in this circuit.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:

Albert Lamar Wells, III, appeals from his sentence for knowingly
and intentionally possessing with the intent to distribute cocaine base,
in violation of 21 U.S.C. § 841(a)(1) (1994). Finding no error, we
affirm.

Law enforcement officials began an investigation after receiving
information that Wells was part of a group of individuals responsible
for the sale and distribution of cocaine base in several counties of
South Carolina. The Federal Bureau of Investigation utilized a confi-
dential informant with prior knowledge of Wells's drug dealing to
purchase cocaine base from Wells. Under the direction of law
enforcement officials, the confidential informant made six undercover
buys of cocaine base from Wells between April and May 1992.

Wells was indicted for conspiring to possess with the intent to dis-
tribute cocaine base and five substantive counts of possessing with the
intent to distribute cocaine base. The conspiracy count named Wells,
his co-defendant, and others known and unknown to the grand jury.

Wells pled guilty to one of the substantive counts of the indictment,
which was based on one of the drug purchases by the confidential
informant. The government debriefed Wells in November 1993 and
again in March 1994, subjecting him to a polygraph examination in
1994. He failed two questions during the polygraph examination.
Wells was sentenced in March 1994 to 120 months of incarceration
after the district court determined that that was the statutory manda-
tory minimum sentence to which Wells was subject. See 21 U.S.C.A.
§ 841(b) (West Supp. 1998).

Wells subsequently filed an appeal with this court pursuant to
Anders v. California, 386 U.S. 738 (1967), challenging the constitu-
tionality of the statutory mandatory penalty scheme and this court
affirmed the district court's judgment. Wells then filed a motion pur-
suant to 28 U.S.C.A. § 2255 (West 1994 & Supp. 1998), relating to
a miscalculation of the drug amount for purposes of imposing the stat-

                    2
utory mandatory minimum sentence. In February 1997, the district
court granted Wells's 2255 motion and ordered resentencing.1

The United States Probation Office submitted a revised presentence
report in June 1997. Wells filed objections to the revised presentence
report. One of Wells's objections was that he was qualified for a two-
level reduction in his offense level under U.S. Sentencing Guidelines
Manual §§ 2D1.1(b)(4), 5C1.2 (the "safety valve" provision) (Nov.
1995).2 The Government filed an addendum to the presentence report
addressing Wells's objections. The presentence report and the adden-
dum stated that the presentence report was prepared based on the
1993 Guidelines Manual. In August 1997, Wells was resentenced to
97 months of incarceration followed by five years of supervised
release.

On appeal, Wells claims that at his resentencing the district court
should have considered a presentence report that was based on the
1995 Guidelines Manual. Wells also claims that the district court
erred in denying him a two-level reduction in his offense level pursu-
ant to U.S.S.G. §§ 2D1.1(b)(4), 5C1.2 (the"safety valve" provision),
amendments that are contained in the 1995 Guidelines Manual.

As Wells notes, a sentencing court is required to use the Guidelines
Manual in effect on the date that a defendant is sentenced. See United
States v. Capers, 61 F.3d 1100, 1109 (4th Cir. 1995); 18 U.S.C.
§ 3553(a)(4) (1994); U.S.S.G. § 1B1.11(a). The Government admits
that Wells's revised presentence report utilized the 1993 rather than
the 1995 Guidelines Manual. Wells complains that he did not have the
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1 At the first sentencing hearing, all relevant conduct was erroneously
considered for purposes of applying the mandatory minimum sentence
rather than just the amount of drugs involved in the count of conviction.
See United States v. Estrada, 42 F.3d 228, 231-33 (4th Cir. 1994).
2 We note that because the mandatory minimum for Wells's conviction,
five years pursuant to § 841(b)(1)(B) (West 1994), was less than Wells's
guideline range (using either an offense level of 29 or 27), he would not
benefit from relief solely under U.S.S.G. § 5C1.2 (this section affords a
defendant, who satisfies certain criteria, relief by sentencing him in
accordance with his guidelines without regard to any statutory mandatory
minimum sentence).

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benefit of a presentence report which addressed the amendments in
the 1995 Guidelines Manual. Specifically, he claims that the proba-
tion office's failure to use the 1995 Guidelines Manual in preparing
his revised presentence report deprived him of a two-level reduction
in his offense level pursuant to U.S.S.G. §§ 2D1.1(b)(4), 5C1.2. How-
ever, Wells's sentencing transcript reveals that, at his resentencing
hearing, he claimed that he was qualified for a two-level reduction in
his offense level pursuant to U.S.S.G. §§ 2D1.1(b)(4), 5C1.2. The
sentencing court considered Wells's claim and determined that he was
not eligible for relief under these sections. Because the district court
analyzed Wells's entitlement to a reduction in his offense level
afforded by the amendments contained in the 1995 Guidelines Man-
ual, the district court did use the Guidelines Manual in effect on the
date Wells was resentenced.

Wells next claims that the district court erred in finding that he was
not entitled to a two-level reduction in his offense level pursuant to
U.S.S.G. §§ 2D1.1(b)(4), 5C1.2. Subsection (b)(4) provides for a two-
level reduction if the defendant meets the criteria set forth in the
"safety valve" provision, see 18 U.S.C.A. § 3553(f)(1)-(5) (West
Supp. 1998); U.S.S.G. §§ 2D1.1(b)(4), 5C1.2, and his offense level is
26 or more. Wells's offense level at his resentencing was 29. The fifth
requirement of the "safety valve" provision is that, by the time of sen-
tencing, "the defendant has truthfully provided to the Government all
information and evidence the defendant has concerning the offense or
offenses that were part of the same course of conduct or of a common
scheme or plan." § 3553(f)(5); U.S.S.G.§ 5C1.2(5). The district court
found that Wells did not satisfy this requirement. Wells had the bur-
den of proving that he qualified for application of the safety valve
provision. See United States v. Beltran-Ortiz , 91 F.3d 665, 669 (4th
Cir. 1996). The district court's determination of whether Wells satis-
fied the requirements of § 3553(f)(1)-(5) is a question of fact
reviewed for clear error. See United States v. Romo, 81 F.3d 84, 86
(8th Cir. 1996); United States v. Rodriguez, 69 F.3d 136, 144 (7th Cir.
1995).

Wells pled guilty to the distribution of cocaine base on one particu-
lar occasion, but the indictment charged him with other sales of
cocaine base. During the six controlled purchases, Wells made many
comments indicating that his drug business involved other individu-

                    4
als. The Government debriefed Wells in November 1993 and March
1994. Wells did not provide any last names of the persons from whom
he had bought cocaine base or to whom he had sold cocaine base,
other than his codefendant. Furthermore, Wells failed a polygraph
examination administered to him in March 1994. Because the Gov-
ernment was attempting to investigate a larger group, including
Wells's sources and clients, Wells was administered the following
two questions during his polygraph examination:"Did you every buy
or sell illegal drugs for Herman Pugh?" and "Did you ever travel out-
side of South Carolina to buy or sell illegal drugs?" Wells answered
"no" to both these questions. The polygrapher concluded that Wells
was deceptive in answering these two questions.

Wells contends that these questions were outside the scope of
§ 5C1.2(5) because they did not address the offense or offenses
charged in his indictment. He alleges that the district court's applica-
tion of § 5C1.2(5) "included any possible drug activity no matter how
far removed or apart from the offenses charged." We disagree. "`Of-
fense' means the offense of conviction and relevant conduct under
§ 1B1.3 (Relevant Conduct) unless a different meaning is specified or
is otherwise clear from the context." U.S.S.G.§ 1B1.1, comment.
(n.1(l)). Offenses are part of a common scheme or plan when they are
substantially connected to each other by at least one common factor
such as common victims, common accomplices, common purpose or
similar modus operandi. See U.S.S.G. § 1B1.3, comment. (n.9(a)).
Moreover, offenses that do not qualify as part of a common scheme
or plan may qualify as part of the same course of conduct if they are
sufficiently connected or related to each other as to warrant the con-
clusion that they are part of a single episode, spree, or ongoing series
of offenses. See U.S.S.G. § 1B1.3, comment. (n.9(B)). Factors appro-
priate to this determination include the degree of similarity of the
offenses, the regularity of repetitions of the offenses and the time
interval between the offenses. See id.

The questions administered during the polygraph examination
related directly to the buying and selling of drugs and the determina-
tion of Well's sources, clients, and mode of operation, whether or not
the drugs came from outside of South Carolina. We find that the two
questions which provided the basis for Wells's deception were within
the scope of his relevant conduct. Although the questions related to

                    5
conduct that was not specifically charged in Well's indictment,
uncharged conduct can constitute the same course of conduct and a
common scheme or plan. See U.S.S.G. § 1B1.3. Thus, the district
court did not clearly err in finding that Wells did not satisfy U.S.S.G.
§ 5C1.2(5).

Accordingly, we affirm Wells's sentence. We dispense with oral
argument because the facts and legal contentions are adequately pre-
sented in the materials before the court and argument would not aid
the decisional process.

AFFIRMED

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