UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                               No. 95-5044

GARY LYNN HARDISON,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                               No. 95-5100

GALE LEE OLIVER, JR.,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                               No. 95-5262

GARY LYNN HARDISON,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                               No. 95-5263

GARY LYNN HARDISON,
Defendant-Appellant.
Appeals from the United States District Court
for the Western District of North Carolina, at Charlotte.
Graham C. Mullen, District Judge.
(CR-93-235-MU)

Argued: September 24, 1996

Decided: January 27, 1997

Before RUSSELL, WIDENER, and HALL, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Norman Butler, LAW OFFICE OF HAROLD BENDER,
Charlotte, North Carolina, for Appellants. Robert James Conrad, Jr.,
Assistant United States Attorney, Charlotte, North Carolina, for
Appellee. ON BRIEF: Milton C. Grimes, Santa Ana, California, for
Appellant Oliver. Mark T. Calloway, United States Attorney,
Gretchen C.F. Shappert, Assistant United States Attorney, Charlotte,
North Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

This appeal arises from the guilty pleas and convictions of defen-
dants Gary Lynn Hardison and Gale Lee Oliver for violations of 21

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U.S.C. §§ 846, 841(a)(1) and Title 18 U.S.C.§ 2 after Charlotte-
Mecklenburg Police, acting with an informer in an October 3, 1994
sting operation, arrested them in a hotel room with seven kilograms
of cocaine. The pleas of guilty were subject to appeal of the denial
of their suppression motions with respect to the evidence obtained at
the time of their arrest. There are two issues on appeal. First, both
defendants contend that the district court's denial of their motion to
suppress the fruits of a warrantless search violated their Fourth
Amendment rights. Second, Hardison claims that at his sentencing
hearing the court erred by improperly relying on hearsay testimony
when it denied his motion for a downward departure pursuant to
U.S.S.G. § 5C1.2, the first offender exception.

We affirm.

I.

Officer Saucic of the Charlotte-Mecklenburg Police Department
received information on October 3, 1993 from an informant that
Dorian Rogers' (a narcotics dealer) people from California would be
arriving the evening of October 3rd, and Saucic and the informant,
Gilmore, set up a delivery of seven kilograms of cocaine for October
4th. After a delay, Officer Saucic had his informer, Gilmore, arrange
a meeting with Rogers to buy the drugs.

Acting on this information, Officer Ensminger rented two rooms
(rooms 229 and 231) at the Fairfield Inn, paying with police depart-
ment funds. He registered room 231 in Gilmore's name and 229 in his
own name. The officers arranged to leave a key to room 231 at the
desk for Rogers to pick up. Informant Gilmore was wired in order that
he could signal the officers waiting in room 229 to enter. The officers
arranged that once Gilmore was in room 231 and had been shown the
cocaine, Gilmore would signal by talking about the cocaine. The
police positioned officers around the hotel as well as in room 231.

Rogers paged Gilmore at about seven o'clock p.m., and Gilmore
then called Rogers to confirm the hotel location. Once Rogers, Hardi-
son, and Oliver had all arrived they went to room 231. Officer Ens-
minger testified that upon receiving the pre-arranged signal indicating
Gilmore had seen the cocaine, the officers waiting in room 229

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moved into the hallway, then knocked at 231, announced their pres-
ence, and entered room 231. Once in the room the officers saw in
plain view the seven kilograms of cocaine in an open suitcase. The
officers arrested the defendants.

On March 7, 1994 Hardison moved for the suppression of the hotel
room search, and Oliver was permitted to join in that motion. On June
6, 1994 the magistrate held a hearing on the matter and on June 9
issued a memorandum and recommendation recommending that the
motion be denied. The district court, upon a de novo review, issued
an order denying the motion to suppress. The district court declined
to apply § 5C1.2 of the Sentencing Guidelines and sentenced Hardi-
son to 121 months. The defendants appeal.

II.

The defendants argue that the holding in Minnesota v. Olson, 495
U.S. 91 (1990), should extend to include a hotel room guest who is
in the room with the permission of the person who is in actual or
apparent control of the hotel room. In Olson, however, the Court
found that the defendant possessed a legitimate expectation of privacy
in the home of his host because the defendant was an overnight guest.
Olson, 495 U.S. at 100. This socially accepted expectation of privacy
thus gave the defendant standing to contest the warrantless search.
Olson, 495 U.S. at 99-100.

Here, however, the magistrate judge, by distinguishing Olson
effectively demonstrated the manner in which the facts in the instant
case in no way call for an extension of Olson :

          The defendants in the instant case did not rent the hotel
          room, nor were they in lawful occupancy thereof. The room
          was rented by a Charlotte-Mecklenburg Police Officer with
          city funds in the name of an informant, and the officers in
          the adjacent room had a key. They were in the room tempo-
          rarily and for the single purpose while a cocaine deal involv-
          ing cocaine in which they have asserted no property interest
          was being concluded by their travelling companion and co-
          defendant [Rogers]. They had no proper personal relation-
          ship with Louis Gilmore, the informant, in whose name the

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          room was rented by the Charlotte-Mecklenburg Police
          Department. . . . Although one might suppose that they did
          not expect to be observed, their subjective expectation of
          privacy as they watched the cocaine transaction is not one
          that society is prepared to recognize as reasonable. In light
          of these facts, the suggested analogy between these defen-
          dants and the longer-term house guest is not so strong --
          and in fact far too weak -- to justify the extension of the
          Minnesota v. Olson analysis and holding.

We find that Hardison and Oliver lacked an expectation of privacy
"rooted in understandings that are recognized and permitted by soci-
ety," Olson, 495 U.S. at 100 (internal quotations omitted). Thus, they
cannot invoke the protection of the Fourth Amendment.

To the same end and effect, the district court relied on Illinois v.
Rodriguez, 497 U.S. 177, 181 (1990), and United States v. Matlock,
415 U.S. 164, 171 (1974), for the proposition that a warrantless entry
is valid when based upon the consent of a third party whom the police
at the time of the entry reasonably believed possessed common
authority over the premises. In the case at hand, Gilmore was a police
informant, and the room was rented in his name. Gilmore signalled
the officers when to come in. Certainly this was within his authority
over the premises, the rent for which had been paid by the police. So
the magistrate judge and the district court reached the same conclu-
sion by two equally valid theories.

III.

Additionally, Hardison argues that it was clearly erroneous for the
district court to deny his motion for sentencing under the Sentencing
Guidelines pursuant to U.S.S.G. § 5C1.2 without respect to any statu-
tory minimum sentence. Title 18 U.S.C. § 3553(f)(1)-(5) permits a
defendant under Title 21 U.S.C. § 846 to be sentenced without regard
to the statutory minimum sentence when the defendant satisfies the
five requirements of section 3553(f) (see U.S.S.G.§ 5C1.2).

Normally, 18 U.S.C. § 841(b)(1)(A) would require a statutory
minimum sentence of 10 years where Hardison was convicted of pos-
session of more than 5 kilograms of cocaine. 18 U.S.C.

                    5
§ 841(b)(1)(A)(ii)(II). Moreover, pursuant to the Sentencing Guide-
lines, Hardison's possession of 7 kilograms of cocaine puts his base
offense level at 32. Given his criminal history category of I, it was
within the district court's discretion to sentence Hardison to 121-151
months.

However, if Hardison were given the benefit of the§ 5C1.2 first-
time offender provision, as he argues he deserves, under Sentencing
Guidelines § 2D1.1(b)(4), his base offense level would be decreased
two levels to 30, thereby decreasing the sentencing range to 97-121
months.

While the parties did not disagree that Hardison met the first four
requirements, the district court found that the defendant did not meet
the fifth criteria. The fifth prerequisite to obtain the benefit of the
first-time offender provision is as follows:

          (5) Not later than the time of the sentencing hearing, the
          defendant has truthfully provided to the Government all
          information and evidence the defendant has concerning the
          offense or offenses that were a part of the same course of
          conduct or of a common scheme or plan, but the fact that the
          defendant has no relevant or useful or other information to
          provide or that the Government is already aware of the
          information shall not preclude a determination by the court
          that the defendant has complied with this requirement.

18 U.S.C. § 3553(f)(5). Thus the defendant must be forthcoming in
the information he has given to the government with respect to the
offense or offenses that were a part of the same course of conduct or
a common scheme or plan.

The district court had heard all the evidence in the case. The pre-
sentence report of the probation officer did not recommend applying
Guideline 5C1.2. In addition to that, the district court heard testimony
from the defendant Hardison and, as well, from the FBI case agent in
charge of the investigation, Agent Roepe. Hardison admitted to only
a limited knowledge of the drug distribution conspiracy.

                    6
Agent Roepe testified as to Hardison's further undisclosed involve-
ment. The agent noted that Hardison, upon his arrest, had admitted he
was a member of the Crips gang. Based on Roepe's own investigation
and ongoing DEA investigations, he also testified that during the six
months prior to his arrest Hardison participated in a conspiracy to
transport cocaine throughout the country via commercial airlines. Fur-
ther, he related that upon Hardison's October arrest, officers had
seized telephone books from both Hardison and Oliver which con-
tained the telephone number for one K.D., whom agents had reason
to believe was Kenny Dorsey, a fugitive in a Drug Enforcement
Administration case. Roepe also testified as to hearsay information he
had obtained by de-briefing Dorian Rogers, one of Hardison's co-
defendants, as well as Roger's brother which implicated Hardison of
having an ongoing involvement in the drug trafficking conspiracy.

In light of this evidence the district court denied Hardison's motion
for sentencing under § 5C1.2 because the court found:

          [Hardison was] being evasive and concealing his full
          involvement. . . . Based on the examination of the defendant
          and the FBI agent, it appears that the defendant is deeply
          involved in the drug trafficking business, and that character-
          izing him as a first-time offender is a mischaracterization
          and would distort the effect of Congress' allowance of an
          exception because he does not qualify for it.

Hardison complains that the agent's testimony was uncorroborated
and thus the government did not meet its burden of showing Hardison
had not been truthful and forthcoming with the court. Further, Hardi-
son argues his due process rights were violated because portions of
Roepe's testimony constituted hearsay.

The Sentencing Guidelines, however, do not limit the type of infor-
mation the sentencing judge may consider. See United States v.
Bowman, 926 F.2d 380, 381 (4th Cir. 1991) (district court may con-
sider any reliable evidence at sentencing, including hearsay).

We are of opinion that the finding of the district court, that Hardi-
son was not being forthcoming is a finding of fact which is not clearly

                    7
erroneous, and its conclusion that § 5C1.2 does not apply is free from
error.

The convictions of the defendants and the sentence of Hardison are
accordingly

AFFIRMED.

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