934 F.2d 320 (4th Cir. 1991), 90-5828, U.S. v. Banks

• Date: 28 May 1991
• Citation: 934 F.2d 320
• Docket Number: 90-5828.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William Kenneth BANKS, a/k/a Kenny Banks, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 320

934 F.2d 320 (4th Cir. 1991)

UNITED STATES of America, Plaintiff-Appellee,

v.

William Kenneth BANKS, a/k/a Kenny Banks, Defendant-Appellant.

No. 90-5828.

United States Court of Appeals, Fourth Circuit

May 28, 1991

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA4 Rule 36 regarding use of unpublished opinions)

Argued April 11, 1991.

Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. J. Calvitt Clarke, Jr., District Judge. (CR-90-41)

Duncan Robertson St. Clair, III, St. Clair & Miller, P.C., Norfolk, Va., for appellant.

Charles Dee Griffith, Jr., Assistant United States Attorney, Norfolk, Va., (argued), for appellee; Henry E. Hudson, United States Attorney, Norfolk, Va., on brief.

E.D.Va.

AFFIRMED.

Before DONALD RUSSELL and WIDENER, Circuit Judges, and MICHAEL, United States District Judge for the Western District of Virginia, Sitting by Designation.

PER CURIAM:

William Kenneth Banks ("Banks") has appealed from a district court judgment imposing sentence based on quantities of drugs not charged in his indictment and on a finding that he played an aggravating role in the offense. Banks had pleaded guilty to attempting to possess in excess of 100 grams of heroin with intent to distribute, 21 U.S.C. §§ 841(a)(1), 846, and unlawful use of a communication facility to facilitate the attempted possession of heroin, 21 U.S.C. 843(b). Banks admitted that he attempted to possess 473 grams of heroin in the transaction for which he was charged. However, Banks denied that he had also engaged in unindicted drug-related conduct. This unindicted conduct plus the conduct charged involved a total of 7.77 kilograms of heroin. The unindicted conduct was also the basis for a finding that Banks had played an aggravating role in the offense. The issues raised are (1) whether the quantities of drugs involved in unindicted conduct were properly included by the district court in its determination of a sentence and (2) whether it was proper to attribute to Banks an aggravating role in the offense. We find no clear error in the district court's sentencing decision and will affirm.

I.

On March 9, 1990, Gary Weathers ("Weathers"), a federal prisoner, telephoned Banks requesting assistance in a sale of drugs. Weathers told Banks he needed some money for his appeal and that he needed someone he could trust to sell some drugs for him. Banks agreed, and Weathers said he would call him back. Weathers then made a second call to Banks to arrange a meeting between Banks and an undercover DEA agent at a restaurant in Norfolk, Virginia. Banks and the agent met as planned at the restaurant, but Banks wanted to leave and conduct the transaction somewhere else. At the second location, Banks accepted from the agent a package containing what he believed was a quantity of heroin. The package actually contained 473 grams of flour. Banks took the package and went back to his car. He was then arrested and charged with attempting to possess heroin with intent to distribute.

During preparation of a presentence report, the probation officer interviewed FBI Special Agent James Watters ("Watters") about Banks' other involvements in the distribution of controlled substances. From this information, the probation officer arrived at a quantity of 8.9 kilograms of heroin, resulting in a base offense level of 34. At the sentencing hearing, Special Agent Watters testified regarding the information he had received from other witnesses which resulted in the base offense level for Banks. Watters stated that FBI information indicated that Banks had been involved in an ongoing distribution of heroin from 1982 until 1988. Watters also stated that Banks obtained the heroin from a man in New York named Tinsely Madison and that Banks was sending individuals up to New York to obtain the heroin. Watters then testified as follows.

In 1982 Banks sent Terry Mitchell to New York to give Madison some money, receive heroin in exchange, fly back to Norfolk, Virginia, and give Banks the heroin. Mitchell made two trips, bringing back a total of four kilograms of heroin, and received $10,000 for making each trip. This information was obtained from Mitchell, who Watters characterized as "very reliable."

During a period of at least three months in 1986, Gary Weathers purchased from Banks 800 grams of heroin in capsule form. Weathers and Banks made regular transactions until December 1988. During this period, Weathers obtained an additional one kilogram of heroin from Banks.

In January 1987, Banks sent Robert Lee Watson to New York to purchase heroin. Watson was arrested in New Jersey, as he was returning to Norfolk, with 600 grams of heroin. At least three informants stated that this heroin was intended for Banks.

After Watters provided this testimony regarding Banks' unindicted conduct, Banks testified and denied involvement in any drug dealings other than the offense for which he was charged. ¹ Banks objected to the base offense level determined as a result of the unindicted conduct testified to by Watters. However, Banks conceded that if the district court found that the information Watters provided was factually true, the information should be used in determining his sentence.

Banks addressed the court again and also denied that he had intended to receive heroin in the transaction with the undercover agent. He stated that he though he was getting cash, not heroin. These statements were in direct contradiction to his statements at the plea proceeding, during which Banks pleaded guilty to the charge of attempting to possess heroin. These statements also contradicted a statement in the presentence report that, when Weathers called Banks to set up the...