United States of America, Plaintiff-appellee, v. Perry Marcus Locklear, Defendant-appellant, 935 F.2d 1288 (4th Cir. 1991)

Perry Marcus Locklear pled guilty to distribution of cocaine (21 U.S.C. § 841) and making a false declaration before a court (18 U.S.C. § 1623).¹  He appeals his sentence on the ground that drug amounts he agreed to sell to an undercover agent, which were not delivered because of his arrest, should not have been used to calculate his offense level. We affirm.

Locklear maintains that only acts which occurred can constitute relevant conduct under U.S.S.G. Sec. 1B1.3. However, Sec. 1B1.3 provides that for drug offenses (offenses of a character for which Sec. 3D1.2(d) would require grouping of multiple counts) all "acts that were part of the same course of conduct or common scheme or plan as the offense of conviction" are relevant conduct. Moreover, application note 1 to Sec. 2D1.4 provides that when a defendant is convicted of an offense involving negotiation to traffic in a controlled substance, the weight under negotiation in an uncompleted distribution shall be used to calculate the applicable amount. See also United States v. Roberts, 881 F.2d 95, 104-05 (4th Cir. 1989). The negotiated amounts were thus correctly included in calculating Locklear's offense level.

We therefore 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.