Unpublished Dispositionunited States of America, Plaintiff-appellee, v. Yvonne Carpenter, Defendant-appellant, 889 F.2d 1089 (6th Cir. 1989)

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US Court of Appeals for the Sixth Circuit - 889 F.2d 1089 (6th Cir. 1989) Nov. 21, 1989

Before MERRITT, Chief Judge, KENNEDY, Circuit Judge, and R. ALLAN EDGAR, District Judge.* 

ORDER

This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the briefs and record, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

Yvonne Carpenter appeals her sentence of six months imprisonment under the Sentencing Guidelines imposed after she entered a guilty plea to simple possession of cocaine. On appeal, Carpenter contends: (1) she received no notice that the magistrate intended to depart from the guidelines and no hearing into the propriety of the departure, (2) the magistrate erred in not finding her a "minor participant," and (3) the two-month upward departure was unreasonable. Upon consideration, we conclude that none of the contentions has merit.

First, a review of the record reveals that the pre-sentence investigation report gave defendant notice of the facts considered to warrant departure and defendant was afforded ample opportunity to dispute those facts. Cf. United States v. Cervantes, 878 F.2d 50, 55-56 (2d Cir. 1989); United States v. Nuno-Para, 877 F.2d 1409, 1415 (9th Cir. 1989); United States v. Otero, 868 F.2d 1412, 1415 (5th Cir. 1989). Second, the magistrate's finding that defendant was not a "minor participant" is not clearly erroneous in light of the undisputed fact that defendant negotiated the sale of at least four ounces of cocaine and delivered at least five ounces. See United States v. Duque, 883 F.2d 43, 44-45 (6th Cir. 1989). Finally, the two-month departure was not unreasonable under the circumstances. See United States v. Joan, 883 F.2d 491, 494-96 (6th Cir. 1989).

Accordingly, the judgment of the district court is affirmed. Rule 9(b) (5), Rules of the Sixth Circuit.

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The Honorable R. Allan Edgar, U.S. District Judge for the Eastern District of Tennessee, sitting by designation