United States of America, Plaintiff-appellee, v. Sean D. Cook, Defendant-appellant, 978 F.2d 1256 (4th Cir. 1992)

OPINION

Sean D. Cook was convicted by a jury of conspiracy to distribute and to possess with intent to distribute five or more grams of crack cocaine (21 U.S.C.A. § 846 (West Supp. 1992)), attempt to distribute five or more grams of crack (21 U.S.C.A. §§ 846, 841 (West 1981 & Supp. 1992)), and distribution of five or more grams of crack (21 U.S.C.A. § 841 (West 1981 & Supp. 1992)). He appeals the sentence imposed, contending that the district court erred in its determination of the amount of crack cocaine for which Cook should be held accountable. We affirm.

Cook agreed, in recorded conversations with a confidential informant, to sell a total of two ounces (56.7 grams) of crack to an undercover agent. He actually produced 6.78 grams of crack on one occasion, 4 grams on another occasion, and 13.31 grams of something which he represented was crack, but which was not. Cook argued at sentencing that only the substances he produced had been proved, and only that amount should be considered in calculating his offense level. However, the district court found that he had agreed to sell two ounces and that the whole amount was relevant conduct. United States Sentencing Commission, Guidelines Manual, § 1B1.3 (Nov. 1991). Although on appeal Cook again contends that he did not negotiate to sell any more than he delivered, the trial record reveals otherwise. Therefore, the district court's factual determination was not clearly erroneous.

We accordingly affirm the judgment of the district court. 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