898 F2d 148 United States v. Clarke

898 F.2d 148

UNITED STATES of America, Plaintiff-Appellee,
v.
Devon CLARKE, a/k/a Little Wayne, a/k/a John Brown,
Defendant-Appellant.
UNITED STATES of America, Plaintiff-Appellee,
v.
Gary GAYLE, Defendant-Appellant.
UNITED STATES of America, Plaintiff-Appellee,
v.
Wayne HISLOP, a/k/a Big Wayne, Defendant-Appellant.
UNITED STATES of America, Plaintiff-Appellee,
v.
Michael SMALLEN, a/k/a Bolo, a/k/a Eddie, Defendant-Appellant.
UNITED STATES of America, Plaintiff-Appellee,
v.
Markie CORINTHIAN, Defendant-Appellant.

89-5085 to 89-5088 and 89-5118.

United States Court of Appeals, Fourth Circuit.

Argued: Dec. 6, 1989.
Decided: Feb. 26, 1990.

Unpublished Disposition
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.

Appeals from the United States District Court for the Eastern District of Virginia, at Norfolk. Robert G. Doumar, District Judge. (CR-88-126-N)

David W. Bouchard, Bouchard & Smith, Chesapeake, Va, Larry W. Shelton, Sams, Shelton, Anderson & Jackson, Waverly W. Jones, Jr., Andrew M. Sacks, Sacks & Sacks, Norfolk, Va, Robert J. Humphreys, McCardell, Inman, Benson, Strickler & Humphreys, P.C., Virginia Beach, Va, for appellants.

Lawrence E. Spong, Special Assistant United States Attorney, on brief: Henry E. Hudson, United States Attorney; Charles D. Griffith, Jr., Assistant United States Attorney, Norfolk, Va., for appellee.

E.D.Va.

AFFIRMED.

Before ERVIN, Chief Judge, and K.K. HALL and WILKINS, Circuit Judges.

WILKINS, Circuit Judge:


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1

Devon Clarke, Gary Gayle, Wayne Hislop, Michael Smallen, and Markie Corinthian appeal their sentences imposed after they pled guilty to various offenses arising from a conspiracy to distribute cocaine and cocaine base. Clarke also appeals the denial by the district court of his motion to set aside his guilty plea. We affirm.

I.

2

Clarke pled guilty to engaging in a continuing criminal enterprise. 21 U.S.C.A. Sec. 848 (West Supp.1989). The district court correctly determined that his base offense level was 36 and his criminal history category was I, producing a sentencing guidelines range of 188-235 months.1 However, because there was a prior "understanding" between the government and Clarke that the offense level was 32, the district court began calculating the sentence at that offense level which, with criminal history category I, produced a sentencing guidelines range of 121-151 months. It then determined that Clarke sanctioned the use of violence and that he was the mastermind behind a large drug distribution ring with "a great deal more than 20 people involved" and concluded that a sentence within this range would not reflect the serious and heinous nature of Clarke's criminal activity. Therefore, the district court departed upward and sentenced Clarke to 175 months imprisonment.

3

Gayle pled guilty to one count charging distribution of one ounce (28.35 grams) of cocaine. 21 U.S.C.A. Sec. 841(a)(1) (West 1981). Upon learning that the presentence report recommended a base offense level of 32 based on the distribution of 5.35 kilograms of cocaine, U.S.S.G. Sec. 2D1.1, Gayle moved to withdraw his guilty plea. The district court denied the motion. Making independent findings, the court determined that during the time Gayle was involved in the conspiracy, 110.25 grams of cocaine were distributed for which Gayle was accountable and, therefore, his correct base offense level was 18. This offense level was increased by 2 for possession of a firearm. See U.S.S.G. Sec. 2D1.1(b)(1). The resulting offense level of 20 and criminal history category I produced a sentencing guidelines range of 33-41 months. The district court sentenced Gayle to 41 months imprisonment.

4

Hislop pled guilty to one count charging possession with intent to distribute .114 gram of cocaine base. 21 U.S.C.A. Sec. 841(a)(1). The district court found that Hislop was accountable for the actual distribution of 132.14 grams of cocaine and, therefore, his base offense level was 18. The district court increased the offense level by 2 for possession of a firearm, U.S.S.G. Sec. 2D1.1(b)(1), increased it by 3 because Hislop was a manager or supervisor of criminal activity involving five or more participants, U.S.S.G. Sec. 3B1.1(b), and decreased it by 2 for acceptance of responsibility, U.S.S.G. Sec. 3E1.1(a). The resulting offense level of 21 and criminal history category III produced a sentencing guidelines range of 46-57 months. The district court sentenced Hislop to 57 months imprisonment.

5

Smallen pled guilty to one count charging conspiracy to distribute and to possess with the intent to distribute more than 500 grams of cocaine. 21 U.S.C.A. Sec. 846 (West Supp.1989). The district court correctly determined that Smallen was responsible for distributing 5.35 kilograms of cocaine resulting in a base offense level of 32. However, because the government and Smallen had negotiated a plea of guilty based on the mistaken belief that the base offense level was 28, the district court agreed to use 28 as the base offense level. The district court increased the offense level by 2 for possession of a firearm, U.S.S.G. Sec. 2D1.1(b)(1), and by 3 because Smallen was a manager or supervisor of criminal activity involving five or more participants, U.S.S.G. Sec. 3B1.1(b). The resulting offense level of 33 and criminal history category I produced a sentencing guidelines range of 135-168 months. The district court sentenced Smallen to 168 months imprisonment.

6

Corinthian pled guilty to a criminal information charging conspiracy to distribute and to possess with the intent to distribute less than 500 grams of cocaine. 21 U.S.C.A. Sec. 846. The district court determined that the actual amount of cocaine for which Corinthian should be held accountable was 4.3 kilograms, resulting in a base offense level of 30. The district court increased the base offense level by 2 for possession of a firearm, U.S.S.G. Sec. 2D1.1(b)(1), and by 3 because Corinthian was a manager or supervisor of criminal activity involving five or more participants, U.S.S.G. Sec. 3B1.1(b). The resulting offense level of 35 and criminal history category I produced a sentencing guidelines range of 168-210 months. The district court sentenced Corinthian to 168 months imprisonment.

II.

7

Clarke contends that the district court erred by departing upward from the sentencing guidelines range. A court may depart from the guidelines if it "finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described." 18 U.S.C.A. Sec. 3553(b) (West Supp.1989). He asserts that the district court departed upward so that his sentence would be similar to that of a co-defendant. While the district court did refer to a sentence given a co-defendant, it is clear that the court based the departure on separate and valid grounds that Clarke sanctioned the use of violence and was the mastermind behind the large drug distribution organization. Both of these reasons are "Commission-identified" bases for departure. The commentary to U.S.S.G. Sec. 2D1.5 states in part that "[i]f as part of the enterprise the defendant sanctioned the use of violence ... or if the number of persons managed by the defendant is extremely large, an upward departure may be warranted." U.S.S.G. Sec. 2D1.5, comment. (n. 2). Applying the standard of review outlined in United States v. Summers, No. 89-5116, slip op. at 6-9 (4th Cir. Jan. 2, 1990), we hold that the district court correctly determined that these reasons do provide a valid basis for departure and that it was not clearly erroneous in finding their existence under the facts of this case. Further, the extent of the departure of 24 months was not an abuse of discretion. See id. at 8-9. Finally, Clarke is not in a position to complain about his sentence for it is lower than the minimum sentence (188 months) which could have been imposed had the correct base offense level of 36 been used in calculating the sentencing guidelines range.2


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8

Clarke also contends that the district court erred by accepting his guilty plea. He argues that the district court did not adequately question him about his participation in the conpiracy or allow him to explain any mitigating circumstances. To the contrary, the record is abundantly clear that the district court meticulously reviewed the plea agreement with Clarke and stressed that if Clarke did not understand what he was doing he would be afforded a jury trial.

III.

9

Hislop and Corinthian contend that the district court erred in determining their base offense levels. Hislop erroneously argues that because he pled guilty to possession with the intent to distribute a specific quantity of cocaine, only that quantity can be used to determine his base offense level. He does concede that if the district court properly considered his relevant conduct, U.S.S.G. Sec. 1B1.3, the base offense level of 18 was correct. Hislop contends that the version of the guidelines effective November 1, 1987, governs his offense because it was committed on December 2, 1987. He argues that prior to an amendment effective January 15, 1988, section 1B1.2 required the district court to apply the guideline most applicable to the offense of conviction and that relevant conduct was only to be considered in determining specific offense characteristics, victim-related adjustments, or departures attributable to the offense conduct. However, the amendment to section 1B1.2 which required the sentencing court to consider relevant conduct in accordance with section 1B1.3 in determining the applicable guideline range was a clarification, not a substantive change. See United States v. Guerrero, 863 F.2d 245, 249-50 (2d Cir.1988) (amendments to language of section 1B1.2 and commentary thereto "only clarify a meaning that was fairly to be drawn from the original version"); see also United States v. Smith, 887 F.2d 104, 107-08 (6th Cir.1989); United States v. Ofchinick, 877 F.2d 251, 257 n. 9 (3d Cir.1989) (amendment intended to clarify existing guideline may be given substantial weight in determining the meaning of the existing guideline). Under the terms of either version of section 1B1.2, the district court was not only entitled but required to look to relevant conduct in applying the guidelines. Thus, the district court properly determined Hislop's base offense level by including the actual amount of cocaine with which he was involved even though the count to which he pled guilty listed a smaller amount.

10

Corinthian also contends that the district court improperly determined his base offense level. He argues that the district court should not have considered the entire amount of cocaine (4.3 kilograms) involved in the conspiracy and that he should only be held accountable for 110.259 grams, the amount he actually distributed. Under U.S.S.G. Sec. 1B1.3(a)(1), Corinthian's level of misconduct is measured by all acts of his co-conspirators that were reasonably foreseeable. See Pinkerton v. United States, 328 U.S. 640 (1946); United States v. Missick, 875 F.2d 1294, 1301-02 (7th Cir.1989). Because the distribution of drugs by the conspiracy was clearly foreseeable, the district court properly determined Corinthian's base offense level by considering all of the drugs involved.

11

Corinthian also contends that the district court improperly considered drug quantities that were involved in a conspiracy in another city, New York, for which Corinthian was under indictment. He contends that using these quantities in determining his base offense level violates the double jeopardy clause. However, the record reflects that the district court excluded from its calculations the cocaine that was involved in the New York conspiracy. The remaining quantity of drugs was related to the conspiracy for which he pled guilty, and the district court correctly determined that this quantity resulted in a base offense level of 30.

IV.

12

Hislop, Gayle, and Corinthian contend that the district court erred by increasing their offense levels for possession of a firearm. The determination of whether a defendant possessed a firearm is a factual finding, thus reviewable under the clearly erroneous standard. See United States v. Daughtrey, 874 F.2d 213, 217 (4th Cir.1989). The evidence indicated that the members of the conspiracy purchased a large number of firearms in furtherance of the conspiracy and that Hislop was present when some of the weapons were purchased. There was also evidence that Gayle and Corinthian held a co-conspirator, who later cooperated with the government, at gunpoint. Corinthian pled guilty to conspiracy and we conclude that the district court did not clearly err by increasing his offense level based upon the finding that he possessed a firearm during the course of the conspiracy. While the evidence is not sufficient to support a finding that Hislop and Gayle personally possessed a firearm during any particular sale of cocaine, it does support a finding that firearms were possessed either by them or other members of the conspiracy during the course of obtaining cocaine and moving it through the distribution network. Additionally, the presence of Hislop when firearms were purchased and the use of a firearm by Gayle to threaten a co-conspirator strengthen the conclusion by the district court that firearms were used in furtherance of their offenses. Thus, we conclude that the district court did not clearly err by increasing the offense level of these appellants for possession of a firearm.

V.

13

Hislop, Smallen, and Corinthian contend that the district court erred by increasing their offense levels based upon their role in the offense. Gayle contends that the district court erred by not reducing his offense level on the basis that he was less culpable than the others. A determination by a district court of a defendant's role in the offense is reviewable under the clearly erroneous standard. Daughtrey, 874 F.2d at 218. The district court found that Hislop recruited others into the conspiracy, gave orders to other members of the conspiracy, and was a mid-level manager. It found that Smallen supervised six to eight drivers who made daily deliveries of drugs for him. As for Corinthian, the district court found that he was the head of the organization that supplied the drugs to Clarke's organization for distribution and that after Clarke was arrested, Corinthian took Clarke's place in the hierarchy. These findings are supported by the evidence and we cannot say that they are clearly erroneous.

14

Gayle contends that he was the least culpable of all of the defendants and as such is entitled to a reduction of his offense level. See U.S.S.G. Sec. 3B1.2. However, the fact that the district court did not find that Gayle was a manager or supervisor does not entitle him to a reduction based upon his role in the offense. See Daughtrey, 874 F.2d at 216-17 ("Even if one of the participants deserved an aggravating adjustment because of other acts he committed, the other participants would not be entitled to minimal or minor Role in the Offense adjustments."). Additionally, Gayle presented no evidence to support his entitlement to a reduction other than his assertion that he was less culpable than the other appellants. Therefore, the district court did not clearly err by determining that Gayle was a participant not entitled to a reduction of his offense level.

VI.

15

Gayle, Smallen, and Corinthian contend that the district court erred by not granting them a reduction of their offense level for acceptance of responsibility. See U.S.S.G. Sec. 3E1.1. While appellants emphasize that they entered pleas of guilty, a plea of guilty does not automatically entitle a defendant to application of this mitigating factor. U.S.S.G. Sec. 3E1.1, comment. (n. 3); United States v. White, 875 F.2d 427, 432 (4th Cir.1989). A district court is in a unique position to determine whether this adjustment should apply and its findings will not be set aside unless clearly erroneous. White, 875 F.2d at 431. There was ample evidence of untruthfulness, incomplete acknowledgment of criminal wrongdoing, and a failure to cooperate with the probation officer, all of which support the district court's finding which we cannot say is clearly erroneous.

VII.

16

In conclusion, we hold that the district court did not err by accepting Clarke's guilty plea or by sentencing Clarke to 175 months imprisonment; that the district court did not err in its calculation of the base offense levels of Hislop and Corinthian; and that the district court did not err in applying the guidelines to determine appellants' offense level totals.

AFFIRMED

17

ERVIN, C.J., and K.K. HALL, Circuit Judge, join in this opinion.

1

United States Sentencing Commission, Guidelines Manual (Oct. 15, 1988). Unless otherwise noted, all references are to the October 15, 1988, version

2

The government did not appeal the fact that Clarke's sentence was below that provided by the sentencing guidelines range for offense level 36