935 F2d 1288 United States v. Johnson

935 F.2d 1288
Unpublished Disposition

UNITED STATES of America, Plaintiff-Appellee,
v.
Barry JOHNSON a/k/a William Brown, Defendant-Appellant.
UNITED STATES of America, Plaintiff-Appellee,
v.
Michael Lovell HINTON, Defendant-Appellant.
UNITED STATES of America, Plaintiff-Appellee,
v.
Derrick Scott MITCHELL, Defendant-Appellant.
UNITED STATES of America, Plaintiff-Appellee,
v.
Hess Victor BRANCH, Defendant-Appellant.

Nos. 90-5079 to 90-5082.

United States Court of Appeals, Fourth Circuit.

Argued April 12, 1991.
Decided June 17, 1991.
As Amended July 17, 1991.

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.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 District of Maryland, at Baltimore. Frederic N. Smalkin, District Judge. (CR-89-434-S)

W. Michel Pierson, Baltimore, Md. (Argued), for appellant Mitchell;

Robert T. Durkin, Jr., Baltimore, Md. (Argued), for appellant Hinton,

Harvey Ellis Eisenberg, Assistant United States Attorney, Coordinator, Organized Crime Drug Enforcement Task Force, Baltimore, Md. (argued), for appellee; Breckinridge L. Willcox, United States Attorney, Baltimore, Md., on brief. Andrew Joseph Burns, Baltimore, Md. (on brief), for appellant Johnson; Joseph S. Longo, Jr., Baltimore, Md. (on brief), for appellant Branch.

D.Md.

AFFIRMED IN PART, VACATED AND REMANDED.

Before MURNAGHAN, Circuit Judge, CHAPMAN, Senior Circuit Judge, and JAMES H. MICHAEL, Jr., United States District Judge for the Western District of Virginia, sitting by designation.

PER CURIAM:


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1

Seventeen individuals were indicted for conspiracy to possess with intent to distribute cocaine in violation of 20 U.S.C. Sec. 846. A number of these persons were charged in the same indictment with violating other federal narcotics laws as well. One of these individuals remains a fugitive and has not been brought to trial. Shortly before trial, most of the alleged conspirators entered into plea agreements with the government which were accepted by the court. During trial, two of the remaining defendants entered guilty pleas. When the trial was concluded, only the appellants Barry Johnson, Michael Hinton and Derrick Mitchell remained as defendants, and the jury found them guilty of conspiracy to possess cocaine with intent to distribute.

2

Johnson, Hinton and Mitchell appeal their convictions claiming that the jury verdict was coerced by the actions of the trial judge, that it was error not to suppress evidence obtained by the use of a court approved telephone wiretap, and that the trial judge should have granted a mistrial after a government witness testified that Barry Johnson had used heroin in his presence and had referred to Johnson as a violent person with a criminal record. In addition, appellants Mitchell and Johnson appeal their sentences, claiming error in the findings of the district judge as to the amount of cocaine that was involved in the conspiracy and the amount that the appellants could reasonably have foreseen as being involved in the conspiracy. Finally, Hess Victor Branch, who entered a plea of guilty, appeals his sentence claiming an incorrect application of the guidelines, because his offense level was increased by two as a result of the alleged use of juveniles by the drug conspiracy. With the exception of Mitchell's sentence, we find no merit to any of these claims. Accordingly, we affirm the judgments of the district court as to all appellants except Derrick Mitchell. As to Mitchell we affirm his conviction, but we find that there are not sufficient findings to support the conclusion that he knew a major drug operation would involve more than 15 kilograms of cocaine; therefore, his sentence is vacated and his case is remanded for resentencing.

I.

3

In November 1988, law enforcement officers seized five kilos of cocaine at the Baltimore-Washington International Airport. This cocaine had arrived from Long Beach, California. The drugs were seized from one of the original defendants in this case. Further investigation revealed a large drug conspiracy and resulted in the indictments of seventeen persons, including the four appellants. During the course of the investigation, DEA agents obtained authorization from a United States District Judge in Baltimore for a 30 day Title III intercept on telephone number (301)974-8263. Electronic eavesdropping on this telephone began on October 4, 1989, and as a result of an extension granted by the district court, the intercept lasted 48 days. The intercepts revealed extensive use of the telephone in furtherance of the sale of drugs and also extensive pager and beeper activity from the targeted telephone. The wiretap resulted in considerable evidence of drug distribution by members of the conspiracy, and tapes of the intercepted conversations were admitted into evidence. A large portion of the evidence of the conspiracy and the participants therein and their activities resulted from the testimony of a Maryland undercover detective, who had infiltrated the conspiracy.

4

There is no claim that the evidence was not sufficient to sustain the convictions, so a further recitation of the facts is not required at this point. Facts necessary to an understanding of our conclusions are set forth as required.

II.

5

Appellants Johnson, Hinton and Mitchell rely upon Jenkins v. United States, 380 U.S. 445 (1965), to argue that the jury verdict was coerced by the trial judge, and therefore it cannot stand. However, the judge's actions presently at issue are not similar to those in Jenkins. The jury in Jenkins had been deliberating just over two hours when it sent a note to the judge advising him that it had been unable to reach a verdict "because of insufficient evidence." The judge thereupon recalled the jury to the courtroom and in the course of his response stated that "you have got to reach a decision in this case." The jury then returned a verdict of guilty on one count and not guilty on another. The Supreme Court reversed and remanded for a new trial, stating that "[u]pon review of the record, we conclude that in its context and under the circumstances the judge's statement had the coercive effect attributed to it." Id. at 446.

6

When we view the actions of the trial judge in context and under all the circumstances presented, we must conclude that the trial judge did not coerce the jury during its deliberations. From the record it is clear that the judge acted in an appropriate manner and within his discretionary authority during his contacts with the jury while it was deliberating.

7

The case went to the jury on the fourth day of trial, Friday, May 4, 1990 at 2:38 p.m., the jury retired to deliberate, and at 5:05 p.m., the court dismissed the jury for the weekend. The jury returned on Monday, May 7, 1990 and resumed its deliberations at approximately 9:55 a.m. At 2:45 p.m., on the same date, the court received a note from the jury stating "What happens if we have reached a verdict on two defendants but are deadlocked about the third?"


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8

The court discussed with the attorneys several alternatives for responding to the jury's question. The judge then recalled the jury and gave the following instructions:

9

We have got a note from you that says, "What happens if we have reached a verdict on two defendants but are deadlocked about the third?"

10

Federal law gives you the right at any time during your deliberations to return a verdict or verdicts with respect to a defendant or those defendants as to whom you have agreed. I would tell you that any such what is called a partial verdict is not subject to revision. You cannot change your mind about that as you continue to deliberate on any remaining issues in the case.

11

It is the desire of the court and all parties that, if possible, you return a verdict on all defendants if you can do so without violating your individual conscience; but, as I have told you, you may return a verdict as to less than one--less than all defendants if you wish to do that; and what I am going to do now is ask you to go back in the jury room and decide whether you wish to follow that procedure or if you simply wish to continue your deliberations until you have reached a unanimous verdict as to all of the defendants.

12

Remember what I said, that, once you have returned a verdict as to any particular defendant, that is not subject to revision, that is final. Okay.

13

So, you all go ahead back in there and take your time. Whatever you want to do in response to what I have told you, you are the ones who decide how you wish to handle that.

14

If you have any further communications, just tap on the door to the Marshal, as you have done.

15

Appellant Mitchell's attorney took exception to the instruction and claimed that it was coercive.

16

At 3:25 p.m. on the same day, the jury forwarded a note to the judge which stated: "Will you accept a deadlock as a verdict?" The court, over defendants' objection, gave the instruction set forth in footnote 7 of United States v. Sawyers, 423 F.2d 1335 (4th Cir.1970). The jury resumed deliberations at 3:38 p.m. and returned a verdict of guilty as to all defendants at 5:45 p.m. on the same day.

17

When we view this record in its context and under all of the circumstances, as Jenkins directs, it is obvious that the jury's verdict was not coerced by the actions of the trial judge. From the beginning, the judge was very considerate of the jury and made no effort to hurry it to a verdict. The jury had been out for just over two hours on Friday afternoon when the court recessed for the weekend and allowed the jurors to return to their homes. Many courts do not allow a jury to be in recess once the case has been submitted to it. Juries that cannot reach a verdict during normal working hours are often kept in deliberation until late at night or overnight or over the weekend. When the jury returned on Monday and began further deliberations, the trial judge made no effort to hurry or coerce the jurors into a decision. The court's response to the first note of inquiry from the jury followed the language of instruction 9-8 of Sand, Modern Federal Jury Instructions and also the requirements of Federal Rule of Criminal Procedure 31(b).

18

Appellants claim that the court's expression that all parties desired the jury to reach a verdict on all defendants had a coercive effect. However, a complete reading of the instruction makes it clear that this desire was conditioned upon the ability of the individual jurors to reach an agreement "without violating your individual conscience." In answer to the jury's second inquiry, the judge gave an instruction that is commonly known as an Allen charge. This name is derived from Allen v. United States, 164 U.S. 492 (1896). We have approved a version of this charge as adopted by the Judicial Conference of the United States and set forth in footnote 7 of United States v. Sawyers, 423 F.2d 1335, 1342 (4th Cir.1970).

19

The trial judge gave the jury the opportunity to return a verdict as to some of the defendants and did not require a verdict as to all of the defendants. After receiving the second charge on Monday afternoon, the jury retired at 3:38 p.m. and returned the guilty verdicts as to all defendants at 5:45 p.m. The two hours of additional deliberations does not indicate that the charge had a coercive effect. In United States v. Martin, 756 F.2d 323 (4th Cir.1985) (en banc), we held that the lapse of more than two hours between receiving an Allen-type charge and reaching a verdict indicated the charge had no coercive effect. When the jury deliberations and the court's additional instructions are viewed in context, the judge's handling of the jury's inquiries by giving the additional instructions did not have a coercive effect upon the jury's verdict.

IV.

20

Pursuant to 18 U.S.C. Sec. 2518(10)(a), the defendants moved to suppress the evidence obtained by the telephone wiretap. Their motion was denied, but they continue to argue that the intercept did not comply with the district court's order requiring the wiretap to be conducted so as to "minimize the interception of communications not otherwise subject to interception ..." and did not comply with 18 U.S.C. Sec. 2518(5), which requires that intercepts "shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under this chapter."

21

The district court received affidavits from the parties, a copy of the minimization instructions given by the United States Attorney to the officers conducting the intercept, an analysis of the intercept activities, and heard argument on the motion to suppress. Prior to trial, a written order was filed denying the motion to suppress. The district court made findings of fact that the United States had made the prima facie showing of its reasonable efforts to minimize the intercept of innocent communications and that pursuant to United States v. Armocida, 515 F.2d 29, 49 (3d Cir.), cert. denied sub nom. Gazal v. United States, 423 U.S. 858 (1975), the burden had shifted to the defendants to demonstrate that there were more effective alternate procedures for minimization which would permit the government to achieve its purpose. The district court found that the defendants offered only criticism of the method employed and failed to suggest any effective alternative.

22

The minimization requirement does not leave all innocent communications unheard. Unnecessary intrusions are to be reduced as much as possible under the circumstances presented. Efforts at minimization must be reasonable under the circumstances and reviewed on a case by case basis when testing compliance. We indicated the rule for this circuit in United States v. Clerkley, 556 F.2d 709, (4th Cir.1977), cert. denied sub nom. Genco v. United States, 436 U.S. 930 (1978), as follows:

23

In analyzing a given case, the federal courts have considered three principal factors: (1) the nature and scope of the alleged criminal enterprise; (2) the government's reasonable expectation as to the content of, and parties to, the conversations; and (3) the degree of judicial supervision while the wiretap order is being executed.

24

Id. at 716.

25

While Clerkley involved the investigation of illegal gambling, these same factors are applicable to a narcotics conspiracy. In Clerkley we observed:

26

When law enforcement officials are confronted with a large, far-flung and on-going criminal activity involving multiple parties, they are afforded greater latitude in conducting wiretaps. The Seventh Circuit, in considering a drug conspiracy, held that

27

[l]arge and sophisticated narcotics conspiracies may justify considerably more interception than would a single criminal episode. This is especially so where, as here, the judicially approved purpose of the wiretap is not so much to incriminate the known person whose phone is tapped as to learn the identity of far-flung conspirators and to delineate the contours of the conspiracy.

28

United States v. Quintana, 508 F.2d 867, 874 (7th Cir.1975). In fact, the legitimate investigation of conspiracies may necessitate the interception of all or almost all communications over a given period of time.

29

Id. at 716-17. Based on this analysis, we find no error in the trial judge's refusal to suppress the evidence obtained through the court approved wiretap.

IV.

30

We find no merit to appellants' argument that the trial judge abused his discretion in refusing to grant a mistrial after undercover Officer Toatley testified that appellant Johnson had used heroin in his presence and later referred to Johnson as a violent person who had a criminal record. These responses were invited by the persistent efforts of defense counsel, and they were followed by cautionary instructions from the court to the jury.

31

While cross-examining Officer Toatley, the defendants' attorneys tried to convince the jury that the defendants knew that Toatley was an undercover agent and that they were merely stringing him along with the intention of robbing him of his cocaine purchase money when circumstances permitted. When Toatley was asked if Johnson knew that he was an undercover officer, he denied this without elaboration. The attorney persisted in this line of questioning, asking for reasons supporting Toatley's opinion. The officer answered that Johnson had never stated that he thought Toatley was a police officer and that Johnson was going through with the cocaine deal. Counsel pressed the witness again and asked for the basis of his belief that Johnson was not aware that he was a police officer. Toatley answered that Johnson had used heroin in his presence and Toatley had not arrested him, so it was doubtful that Johnson thought he was a police officer. The trial court granted a motion to strike and gave a curative instruction, but stated that at the time the answer was responsive to the question.

32

Cross-examination continued with the defense counsel trying to elicit some type of concession from Toatley that Johnson must have known he was an undercover agent. Counsel finally asked Toatley why it was necessary for other undercover agents to accompany him on a flight from Baltimore to California for his protection. Again the response of Toatley was invited by defense counsel's question, and Toatley responded that the other officers were there because "from his [Johnson's] record we knew he was a violent person." A motion to strike was granted and a second curative instruction was given to the jury, although it was not necessary. When counsel insists on pursuing a line of questioning that has thus far proved fruitless and that has already produced one damaging answer and a curative instruction to the jury, he returns to this line of questioning at his peril. As a result, he will not be heard to complain of an abuse of discretion by the district court, which graciously gave him a second curative instruction, but denied his motion for a mistrial.

33

There is no necessity to review this episode on a harmless error basis because there was no error and no abuse of discretion by the trial judge in the manner in which he handled the two responses made by Officer Toatley. The witness had answered the same question several times in a harmless way, and when pressed he finally responded with what he really thought. A defendant may not invite such a response and attempt to use it as a basis for a mistrial.

V.

34

Appellants Johnson and Mitchell claim that the sentencing judge erred in finding that it was reasonably foreseeable to them that the drug conspiracy in which they were engaged involved at least 15 kilograms of cocaine. The findings of fact by the district court at sentencing must be accepted by us, unless they are clearly erroneous, and the standard of proof on disputed factual issues at sentencing is a preponderance of the evidence. United States v. Vinson, 886 F.2d 740, 742 (4th Cir.1989), cert. denied, 110 S.Ct. 878 (1990). At the sentencing of both Johnson and Mitchell, the district court stated that it found by a preponderance of the evidence that had been presented at the trial and at the sentencing hearings that it was reasonably foreseeable to Johnson and to Mitchell that the drug conspiracy involved at least 15 kilograms of cocaine.

35

The significance of 15 kilograms is set forth in the United States Sentencing Guidelines, which establish a base offense level of 34 for drug trafficking or possession with intent to distribute at least 15 kilograms of cocaine. See U.S.S.G. Sec. 2D1.1(a)(3). Section 2D1.4 provides that the base offense level of a defendant convicted of conspiracy involving a controlled substance "shall be the same as if the object of the conspiracy or attempt had been completed."

In Vinson we stated:

36

According to the Commentary to Guidelines Sec. 2D1.4, a defendant convicted of conspiracy shall be sentenced "only on the basis of [his] conduct or the conduct of coconspirators in furtherance of the conspiracy that was known to the defendant or was reasonably foreseeable." Since the base offense level in drug cases, both conspiracy and otherwise, is directly determined by the type and amount of drugs involved, the determination of the foreseeability of the extent of the overall conspiracy is often critical. It is clearly a question of fact which will only be overturned on appeal if it is clearly erroneous.

37

Vinson, 886 F.2d at 742. Therefore, we must examine the record to determine if there is evidence to support the district court's finding that it was "reasonably foreseeable" to Johnson and/or Mitchell that the conspiracy involved at least 15 kilograms of cocaine.

A.

38

Barry Johnson argues that the evidence reflects that he conspired only with Tracy Brown, the cocaine source in California, that none of the intercepted telephone calls were either to him or from him, and that during the time that Officer Toatley was associated with Johnson there was no reference to co-conspirators Mitchell, Hinton and Stansbury. He claimed at sentencing that he handled less than five kilograms of cocaine. He also argued that only his association with Tracy Brown and the drugs that they handled could be considered in determining drug weight. Although Johnson acknowledged telling Officer Toatley that he had smuggled over ten kilograms of cocaine, he claims this statement should be disregarded because he was simply "bragging," and this statement was not corroborated by other evidence. Johnson also claims that he was not in the conspiracy prior to July 1989.

39

The district court had information from a number of sources relating to Johnson's involvement in the conspiracy and the amount of drugs that he could have reasonably foreseen as being involved. In addition to the trial testimony in Johnson's case, the court had accepted the guilty pleas of thirteen codefendants and the factual statements accompanying these pleas. The court also had the presentence investigation report prepared by the Probation Office on Johnson, and the court conducted a sentencing hearing prior to making its findings of fact as to Johnson's involvement and what he could have reasonably foreseen.

At sentencing the court found:

40

The Court finds by a preponderance of the evidence, based on the testimony at trial and the evidence adduced here at the sentencing hearing, that it was reasonably foreseeable to this defendant that the conspiracy would reasonably involve at least 15 kilograms. I base that finding, as I said, on the evidence at trial.

41

The calculation of the drug amounts, setting the base offense level in conspiracy cases is not dependent on how much actually passes through the defendant's hands or how much the defendant physically saw. It's dependent on the defendant's activities and his position to be in a position to know what was going on.

42

I find here, based on the relationship between the defendant, Barry Johnson, and the kingpin of this conspiracy and the many trips to California, despite the way Mr. Johnson seeks to characterize them, that these circumstances, given his involvement in this drug conspiracy, is enough to warrant by a preponderance of the evidence and it so does warrant a finding of a base offense level of 34.

43

The July 1989 trip to California was made by Johnson, Tina Brown, Louis Edwards and Officer Toatley to purchase three kilograms of cocaine from Tracy Brown. Prior to this trip, Johnson had told Toatley that he had previously received approximately ten kilograms of cocaine from Tracy Brown and that he had delivered approximately $100,000 to Tracy Brown in California. This was confirmed by Tracy Brown at the trial. Brown gave conflicting testimony as to the amount of cocaine he had provided to Johnson. On direct examination, he stated that there were five or six trips to California for cocaine and that the amounts involved one-half to one kilogram. On cross-examination he stated that the first sale was one-half kilogram and that thereafter the amounts grew to one to two kilograms for each trip.

44

Although Johnson would have us limit his contacts to Tracy Brown, the record reflects that he knew and dealt with at least four other co-conspirators, two of whom accompanied him on the trip to California in July 1989. The court was aware that Tracy Brown was Johnson's cousin and that in July 1989 Johnson was the person who arranged purchases from Tracy Brown. Johnson was also aware that co-conspirator Raymond Watts had $40,000 to pay Tracy Brown, so he was aware of Watts' involvement with the cocaine supplier.

45

It is obvious that appellant Johnson's role was not as minor as he contends, and there is a preponderance of evidence to support the trial judge's finding that Johnson could reasonably foresee that cocaine in excess of 15 kilograms was involved in the conspiracy during the time that he was a member.

B.

46

Appellant Mitchell was found to know or should have reasonably foreseen that the conspiracy involved at least 15 kilograms of cocaine, and he was given a two level reduction as a minor participant. However, he claims that there are no facts from which the court could infer that he had knowledge or should have reasonably foreseen that such a quantity of drugs was involved.

47

The district court considered the evidence from the trial, the presentence investigation report on Mitchell, the prior sentencing hearings and the sentencing hearing of Mitchell. The evidence showed that Mitchell leased seven telephone pagers or beepers. These instruments were leased at various times over a period of approximately six months. It is common knowledge that pagers are used in the sale and distribution of illegal drugs. One of these pagers was used by co-conspirator Stansbury, and during one 60-day period this pager was activated 2,050 times. Additional charges are made for calls in excess of 200 per month, so Mitchell was aware that Stansbury had used his pager extensively and aware that Stansbury was a distributor of cocaine.

48

There was no direct evidence that one of the pagers was used or carried by Mitchell, except that after he was arrested he returned one of the instruments to the leasing company. Mitchell was involved in one direct sale of at least one quarter kilogram of cocaine in Annapolis, Maryland in either October or November 1989.

49

In finding that a base offense level of 34 was appropriate for Mitchell, the court stated:

50

The Court finds that by a preponderance of the evidence the base offense level for this defendant should be 34. The reason I find that is because the question is not how much he had in his personal possession, the question is not how much he directly facilitated or dealt. The question is what amount should be reasonably foreseeable to the defendant.

51

As I view 2D1.4 and 3B1.3 and 1.4 and all of the other hodgepodge of guidelines that goes into calculating one of these drug conspiracy sentences, here the defendant was not--even though he might have been a minor participant, the question of whether he was a minor participant or not does not bear directly upon the degree of activity involving drugs that is reasonably foreseeable to him, and I find by a preponderance of the evidence that he either personally leased or is responsible for leasing a large number of beepers over a long period of time, which is indicative to somebody, except someone who has willfully blinded himself to it, that he is involved in a major drug operation, and a major drug operation would involve more than 15 kilograms, as charged by the government, or at least 15 kilograms.

52

Over this particular period of time he himself was involved in one deal that involved more than a couple of ounces, involved at least a quarter of a kilogram of drugs; and, given the extent of this conspiracy and the fact that this defendant was not simply a courier but was, as I find by a preponderance, in a position where he knew or reasonably should have know that it was an extensive and large conspiracy, 34 is the proper offense level. I find that by a preponderance of the evidence as a matter of fact.

53

A sentence should be imposed only on the basis of the defendant's conduct, or in a conspiracy, the conduct of coconspirators that was known to the defendant or reasonably foreseeable by him. The only evidence of Mitchell's sale of cocaine was the one quarter of a kilogram sold in Annapolis in the fall of 1989. It is obvious from the record that Mitchell leased at various times over a period of six months seven pagers or beepers and these instruments were used by other co-conspirators. The seven pagers were not all leased at the same time. The number of pagers grew from one to a total of seven over a six month span of time. Mitchell claims that he was involved in "free enterprise," the leasing and subleasing of pagers. The record supports a conclusion that he was aware of the illegal activities of Stansbury and others in the conspiracy, but the difficult question remains as to what amount of drugs he could reasonably have foreseen as passing through the conspiracy. The district court found that his leasing of the beepers over a long period of time was indicative that he was involved in a major drug operation, and then concluded that a major drug operation would involve more than 15 kilograms. Mitchell contends that this is a double inference drawn from the one fact of his leasing seven pagers. First, he claims that there is an inference from the number of pagers leased and the time for which they were leased that he knew that he was involved in a major drug operation. Actually, this is not an inference because he did know that some of the beepers, particularly the one furnished to Stansbury, were being used in furtherance of the drug conspiracy. However, the second claim of inference presents a more troubling issue. The district court found that Mitchell knew from the number of beepers that he was involved in a major drug operation and "that a major drug operation would involve more than 15 kilograms of cocaine." Technically, this is not an inference built upon an inference, because there is evidence of his knowledge of the use of some of the beepers to distribute cocaine. However, without more evidence than appears on the present record, there is nothing to support the inference that Mitchell should know "a major drug operation would involve more than 15 kilograms." Without more detailed findings of fact, we find that this inference is unsupportable, and the sentence of Mitchell must be vacated and his case remanded for resentencing.

VII.

54

We find no merit to Hess Victor Branch's appeal. Branch entered a plea of guilty and as a result of a plea agreement, which he and his attorneys negotiated, stipulated to and refused to withdraw when offered an opportunity to do so by the district court. In paragraph 5(d) of the plea agreement, it is stipulated that an upward adjustment of two levels is appropriate pursuant to U.S.S.G. 5K2.0 because of the use of juveniles by the conspiracy. The agreement states that use of juveniles is an aggravating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines. Branch makes a convoluted argument that the agreement does not contain a departure stipulation which is unpersuasive. He freely and voluntarily entered into the plea agreement, he was aware of its terms, and he was given the opportunity to withdraw it. This court will not aid him in his effort to avoid the obligations of the agreement.

55

The sentence of Derrick Mitchell is vacated and his case is remanded for resentencing. All convictions are affirmed, as are the sentences of the other appellants.

56

AFFIRMED IN PART; MITCHELL'S SENTENCE IS VACATED AND REMANDED FOR RESENTENCING.