UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                       No. 99-4090

ALEXANDER MARTINEZ,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Charleston.
David C. Norton, District Judge.
(CR-95-568)

Submitted: September 28, 1999

Decided: November 9, 1999

Before WIDENER, WILLIAMS, and KING, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Neil M. Schuster, Miami Beach, Florida, for Appellant. J. Rene Josey,
United States Attorney, Miller W. Shealy, Jr., Assistant United States
Attorney, Charleston, 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Unpublished opinions are not binding precedent in this circuit.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:

Alexander Martinez appeals the 108-month sentence he received
after he pled guilty to conspiracy to possess with intent to distribute
and distribute cocaine. See 21 U.S.C.A.§ 846 (West Supp. 1999). He
disputes the district court's finding that he had an aggravating role in
the offense, which resulted in a two-level adjustment under U.S. Sen-
tencing Guidelines Manual § 3B1.1(c) (1995).* Alternatively, he con-
tends that the district court departed upward without giving him
adequate notice. We affirm.

Martinez agreed to buy forty kilograms of cocaine from a drug task
force undercover agent and a Colombian informant, and suggested
that he take delivery in Charleston, South Carolina, where he had a
customer. Martinez and co-defendant Oliver Landaetta arrived in
Charleston a few days later and were met at the airport by co-
defendant Wendell Green. Martinez then called the informant and
asked for more time to collect the money he needed. Later that day
he and Landaetta came to the motel where the deal was to take place
for further negotiations. The agent and the informant agreed to wait
a bit longer. The next day, Martinez came to the motel alone with
$66,000 in two plastic bags. Landaetta and another man (presumably
Green) were to bring the rest of the money shortly. Martinez was then
arrested. Landaetta and Green, who were driving around in the vicin-
ity of the motel, were apprehended after a high-speed chase. Green
had $17,350 in a plastic bag.

Martinez contends that the district court either clearly erred by bas-
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*Martinez was sentenced in 1996. No appeal was noted. In 1998, he
moved to vacate his sentence pursuant to 28 U.S.C.A.§ 2255 (West
Supp. 1999), alleging that he had asked his attorney to appeal. At an evi-
dentiary hearing, the government stipulated that§ 2255 relief was appro-
priate to allow Martinez to appeal the role adjustment. Martinez agreed
to forego a criminal history issue and any further claims against his attor-
ney. The district court then re-entered the judgment, see United States v.
Peak, 992 F.2d 39, 42 (4th Cir. 1993), and Martinez filed this timely
appeal.

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ing the adjustment on a finding that he managed"the property, assets,
or activities" of the conspiracy, or departed without giving him proper
notice. See United States v. Withers, 100 F.3d 1142, 1147 (4th Cir.
1996) (standard of review); U.S.S.G. § 3B1.1, comment. (n.2) (defen-
dant must exercise authority over another participant to qualify for the
adjustment, but departure may be warranted for defendant who has
management responsibility for property, assets, or activities of crimi-
nal organization).

The district court mentioned, in making its finding, that the evi-
dence showed that Martinez exercised management responsibility
over the property, assets, and activities of the conspirators and, were
this all it found, the adjustment would be improper. However, the
court also found that Martinez conducted all the negotiations in Flor-
ida, suggested Charleston as the place where the sale should take
place because he had a contact there, and took the lead in negotiations
even when Landaetta was present. Based on these findings, which
were supported by the evidence, the adjustment was not clearly erro-
neous. Because adjustments are mandatory if supported by the evi-
dence, use of an adjustment is correct if any factor validly supports
it. See United States v. Ashers, 968 F.2d 411, 414 (4th Cir. 1992).
Therefore, the district court did not err in making the adjustment. The
second issue Martinez raises is without merit; because the district
court did not depart, advance notice of a possible departure was not
necessary.

We therefore affirm the sentence. We dispense with oral argument
because the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the decisional
process.

AFFIRMED

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