United States of America, Plaintiff-appellee, v. Eddie Ray Tucker, Defendant-appellant, 959 F.2d 232 (4th Cir. 1992)

Annotate this Case
US Court of Appeals for the Fourth Circuit - 959 F.2d 232 (4th Cir. 1992)

Submitted March 13, 1992. Decided April 6, 1992


Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Robert D. Potter, District Judge. (CR-90-84-C)

Harry B. Crow, Jr., Monroe, N.C., for appellant.

Thomas J. Ashcraft, United States Attorney, H. Thomas Church, Assistant United States Attorney, Charlotte, N.C., for appellee.

W.D.N.C.

AFFIRMED.

Before WIDENER and K.K. HALL, Circuit Judges, and CHAPMAN, Senior Circuit Judge.

OPINION.

PER CURIAM:


Eddie Ray Tucker pled guilty to conspiracy to possess with intent to distribute over five hundred grams of cocaine. (21 U.S.C. § 846 (1988)). He challenges the sentence imposed and we affirm.

First, Tucker contends that the district court erred in finding that he was a minor participant in the offense when he was in fact a minimal participant. Although Tucker made a written objection to the probation officer's recommendation that he be given a two-level reduction in offense level as a minor participant, he abandoned this objection at the sentencing hearing, and agreed that he was a minor participant. Appellate review has thus been waived. See United States v. Tibesar, 894 F.2d 317 (8th Cir.), cert. denied, 59 U.S.L.W. 3245 (U.S.1990). In any case, our review of the record on appeal discloses that the district court's finding was not plain error, and even if the point were properly preserved, the holding of the district court was not clearly erroneous.

Tucker also claims that the district court should have sua sponte addressed the possibility of a downward departure based on evidence of his good character up to the time of the offense which was presented by his father and his minister at the sentencing hearing. Because Tucker did not request a departure, this issue can also be considered waived. Moreover, a failure to depart is not reviewable on appeal. United States v. Bayerle, 898 F.2d 28 (4th Cir.), cert. denied, 59 U.S.L.W. 3244 (U.S.1990).

The judgment of the district court is therefore affirmed. 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.