UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 98-4847

JOHN KEVIN HARTLEY,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Matthew J. Perry, Jr., Senior District Judge.
(CR-98-417-MJP)

Submitted: November 30, 1999

Decided: December 22, 1999

Before MURNAGHAN, MICHAEL, and KING, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Parks N. Small, Federal Public Defender, Columbia, South Carolina,
for Appellant. J. Rene Josey, United States Attorney, Cameron G.
Chandler, Assistant United States Attorney, Columbia, South Caro-
lina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

PER CURIAM:

John Kevin Hartley appeals the sixty-month statutory minimum
sentence he received after his guilty plea to conspiracy to possess
marijuana with intent to distribute and to distribute marijuana. See 21
U.S.C. § 846 (1994). He contends that the district court erred in
imposing the mandatory minimum five-year sentence without finding
that at least 100 kilograms of marijuana were involved in the offense
of conviction. We affirm.

Hartley was arrested just as he was about to receive fifty-two
pounds of marijuana from co-defendant Gary Bennett. Bennett and a
third defendant, Saladin Shabazz, had already been arrested and both
were cooperating. Bennett told authorities that he had delivered
between 600 and 800 pounds of marijuana (between 272 and 362
kilograms) to Hartley during the course of the conspiracy. Hartley
was charged with conspiring with Bennett and Shabazz from the sum-
mer of 1996 until May 1998.

Following his guilty plea and preparation of the presentence report,
Hartley objected to the probation officer's recommendation for a base
offense level of 26 (100-400 kilograms marijuana). See U.S. Sentenc-
ing Guidelines Manual § 2D1.1 (1998). However, at the sentencing
hearing, Hartley withdrew all objections to the presentence report.
With a three-level adjustment for acceptance of responsibility, Hart-
ley's offense level was 23. He was in criminal history category III,
which gave him a guideline range of 57-71 months. However, the
five-year statutory minimum sentence made the range 60-71 months.
See USSG § 5G1.1(c)(2).

Hartley's attorney then asked the district court to declare unconsti-
tutional the statutory minimum sentence of five years required under
§ 841(b)(1)(B)(vii) for offenses involving more than 100 kilograms of
marijuana. The district court declined to do so. The court imposed the
minimum sentence of sixty months. Because Hartley withdrew his
objections to the presentence report, there was no dispute at sentenc-
ing as to the amount of marijuana involved in the conspiracy and
attributable to Hartley. Bennett alleged that he had delivered the

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whole 400-800 pounds to Hartley, so reasonable foreseeability was
not an issue. See USSG § 1B1.3(a)(1)(A). The government has car-
ried its burden of proving the amount of drugs because Hartley aban-
doned his objection to the recommended finding in the presentence
report that the district court found reliable. See United States v.
Gilliam, 987 F.2d 1009, 1013 (4th Cir. 1993). The court's adoption
of the recommended findings in the presentence report was an implied
finding of reliability. No further findings by the district court were
needed.

The cases cited by Hartley are distinguishable. In both United
States v. Estrada, 42 F.3d 228, 232 (4th Cir. 1994), and United States
v. Darmand, 3 F.3d 1578, 1581 (2d Cir. 1993), the district court
included drugs from separate conspiracies not part of the instant
offense of conviction to reach the threshold necessary to trigger the
mandatory minimum sentence. In this case, all the drugs used to cal-
culate the offense level were part of the instant offense.

Because the district court did not err in imposing the mandatory
minimum sentence, we affirm the sentence. The government's motion
to submit the case on the briefs is granted. 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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