UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 97-4733

DEJUAN SOTO,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Rock Hill.
Joseph F. Anderson, Jr., District Judge.
(CR-96-15)

Submitted: June 9, 1998

Decided: June 26, 1998

Before ERVIN, MICHAEL, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

David B. Betts, Columbia, South Carolina, for Appellant. J. Rene
Josey, United States Attorney, Marshall Prince, 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Unpublished opinions are not binding precedent in this circuit.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:

Dejuan Soto pled guilty to conspiracy to possess cocaine with
intent to distribute, 21 U.S.C. § 846 (1994). He appeals the
130-month sentence he received, contending that the district court
clearly erred in determining that he was responsible for at least 3.5
kilograms of cocaine, see USSG § 2D1.1,* in finding that he was not
a minor or minimal participant, see USSG§ 3B1.2, in finding that he
obstructed justice, see USSG § 3C1.1, and in finding that he had not
accepted responsibility for his offense, see USSG § 3E1.1. Soto has
requested leave to file a pro se supplemental brief in which he further
contests the district court's finding concerning the drug amount and
argues that the district court failed to make a specific finding on the
matter. We grant leave to file the supplemental brief and affirm.

At Soto's sentencing hearing, Federal Bureau of Investigation
(FBI) Agent Michael Doherty testified that, after Soto and thirty-six
codefedants were indicted, but while Soto remained a fugitive, the
FBI was contacted by Sandra Ungarski. Her husband, codefendant
John Ungarski, was in custody. Sandra Ungarski said Soto, whom she
knew as Derrick Lee, had come to her house in Pennsylvania in the
middle of the night asking about her husband. Afraid to tell Soto that
her husband had been arrested, she said he was out of town. Soto
replied that he knew differently, and that if he[Soto] were arrested,
he would have some of his friends take care of her. Mrs. Ungarski
understood this to be a threat. John Ungarski subsequently informed
investigators that Soto had recruited him to transport cocaine from
New York to various locations for Leroy Gardner, a New York
cocaine dealer. Soto reportedly showed Ungarski a secret compart-
ment in the 1985 Cadillac where the cocaine was hidden. Another
conspirator, Robert Coleman, who distributed cocaine in South Caro-
lina, told investigators that Soto coordinated the transportation of
cocaine from Gardner to him and also arranged for money to be trans-
ferred to Gardner. He said that Soto provided him with names to use
in wiring money to Gardner, including the name Derrick Lee. Four
money orders totaling $24,000 were sent to Derrick Lee. When he
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*U. S. Sentencing Guidelines Manual (1995).

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was arrested, Soto had a Social Security card in the name Derrick
Lee.

Another courier, Jamie Winford, testified at sentencing that Soto
accompanied him when he picked up nine packages from Gardner and
another five packages from Gardner's girlfriend the same day. Each
package measured about 9-1/2 inches by 2-1/2 inches by 6-1/2 inches.
Winford understood that the packages contained cocaine and said he
believed each package contained about one kilogram of cocaine.
However, he did not weigh the packages or see the contents. Winford
said Soto placed all the packages in a secret compartment in the van
Winford was driving. Winford testified that his job was to deliver
cocaine to customers of Gardner's in Virginia, North Carolina, and
South Carolina.

Soto also testified. He said Gardner was a friend, but that he had
no part in Gardner's drug dealing. He said he also knew Ungarski and
had arranged for Ungarski to repair Gardner's cars on occasion and
that once, as a favor, Ungarski had driven one of Gardner's cars to
North Carolina to have it inspected. Soto admitted that when he gave
the car keys to Ungarski he believed cocaine was hidden in the car.
He denied picking up packages of cocaine with Winford or threaten-
ing Sandra Ungarski. He said the Social Security card in the name of
Derrick Lee which he was carrying when he was arrested had been
left at his house by his brother's friend who on occasion picked up
money for Gardner.

To determine the amount of cocaine for which Soto was account-
able, the district court accepted Winford's testimony that Soto helped
him pick up a total of fourteen packages of cocaine. However, the
court declined to find that each package contained one kilogram of
cocaine, as the government argued, because Winford had not seen or
weighed the cocaine. The court estimated that the total amount
involved was at least 3.5 kilograms of cocaine based on Winford's
testimony about the packages of cocaine and the agent's testimony
concerning Soto's involvement with the transfer of money. Soto
argues on appeal that there was no reliable evidence concerning the
amount of cocaine because Winford did not see the contents of the
packages he picked up with Soto and that the district court's finding
is, consequently, clearly erroneous. See United States v. McDonald,

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61 F.3d 248, 255 (4th Cir. 1995) (standard of review). However, in
a case where there has been "no drug seizure or the amount seized
does not reflect the scale of the offense, the court may approximate
the quantity of the controlled substance." USSG§ 2D1.1, comment.
(n.12); see also United States v. D'Anjou, 16 F.3d 604, 614 (4th Cir.
1994). We are persuaded that the district court's finding was adequate
to resolve the issue. Moreover, the court's conservative estimate of
the amount of cocaine in the nine packages was not clearly erroneous.

Given the court's finding that Soto's involvement was not limited
to the conduct he admitted--delivering to Ungarski the keys to a car
he knew contained cocaine--the district court did not clearly err in
finding that he had more than a minimal or minor role in the offense.
The district court credited Winford's testimony and the hearsay infor-
mation from other conspirators presented by the agent, which showed
that Soto was neither among the least culpable, see USSG § 3B1.2,
comment. (n.1), nor less culpable than most other participants. See
USSG § 3B1.2, comment. (n.3).

Soto next contends that the government failed to prove that he
obstructed justice because there was no evidence that Mrs. Ungarski
was afraid of Soto, only of his associates. He also argues that there
was no evidence that she was expected to be a witness and, therefore,
no evidence that her perception that she was threatened could have
interfered with the administration of justice. The court properly
found, however, that an attempt to intimidate a witness is enough to
trigger the adjustment. See USSG § 3C1.1 & comment. (n.3(a))
(adjustment applies if defendant attempts to impede prosecution by
threatening co-defendant or witness). We note that the threat was that
Mrs. Ungarski would be harmed by Soto's friends should Soto be
arrested; therefore, her fear was naturally directed not to Soto, but to
his friends. In addition, the threat was obviously intended to discour-
age either Ungarski or his wife from giving information which might
lead to Soto's arrest, and thus was intended to frustrate the prosecu-
tion of the offense. Finally, because Soto received an adjustment for
obstruction of justice, the district court did not clearly err in refusing
to award him a reduction for acceptance of responsibility. See USSG
§ 3E1.1, comment. (n.4).

Accordingly, we affirm the sentence. Soto's motion for leave to file
a pro se supplemental brief is granted. We dispense with oral argu-

                     4
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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