U.S. v. Harry

• Decision Date: 13 March 1992
• Docket Number: No. 91-2021,91-2021
• Parties: UNITED STATES of America, Appellee, v. Earl Lester HARRY, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 51

960 F.2d 51

UNITED STATES of America, Appellee, v. Earl Lester HARRY, Appellant.

No. 91-2021.

United States Court of Appeals Eighth Circuit.

Submitted Oct. 17, 1991.

Decided March 13, 1992.

Lorraine Sneed Ingels, Cedar Rapids, Iowa, argued (Gary L. Robinson, on brief) for appellant.

Daniel Christopher Tvedt, Cedar Rapids, Iowa, argued, for appellee.

Before WOLLMAN, Circuit Judge, ROSS, Senior Circuit Judge, and LOKEN, Circuit Judge.

WOLLMAN, Circuit Judge.

Earl Harry appeals from the sentence imposed on him by the district court ¹ after pleading guilty to two counts of drug-related charges. We affirm.

I.

Earl Harry (Harry) was involved in a drug distribution network from sometime in 1988 through August of 1990. Harry and Mike Woodward (Woodward) obtained large amounts of cocaine and marijuana from Jesse Lopez, who lived in Chicago. They then distributed the drugs to others for resale in Iowa and Wisconsin. Although Woodward usually met with Lopez to obtain the drugs, Harry also met with Lopez on several occasions. Woodward generally handled the cocaine, while Harry generally handled the marijuana. Woodward's wife, Lynn, kept records for Woodward, and Harry's wife, Juanita, kept records for Harry.

Gary Harry (a cousin) was one of the persons to whom Woodward distributed cocaine for resale. Harry introduced his cousin to Woodward. He knew that his cousin was obtaining cocaine from Woodward and that Woodward was a major source of cocaine in the area. After Woodward was severely injured in an accident and could no longer supply Gary with cocaine, Harry took Gary to Chicago to meet with Lopez, who refused to deal directly with Gary without approval from Harry. Gary Harry was eventually arrested and agreed to cooperate with police; this cooperation led to Harry's arrest.

Harry pled guilty to conspiracy to distribute and possession with intent to distribute cocaine and marijuana. Based on the amounts of drugs attributed to Harry in the presentence report, the district court set Harry's base offense level at twenty-six. The court then increased the base level by four levels for Harry's role in the conspiracy pursuant to section 3B1.1(a) of the Sentencing Guidelines. The court then decreased the offense level by two levels for Harry's acceptance of responsibility pursuant to section 3E1.1(a) of the Guidelines. Harry's offense level was then twenty-eight, which, when combined with his criminal history points, resulted in a sentencing range of 97-121 months. The district court sentenced Harry to 121 months' imprisonment and five years of supervised release.

On appeal, Harry claims that the district court erred in adjusting upward for his role in the offense because he was not an organizer in the conspiracy, the conspiracy did not involve five or more participants, and the conspiracy was not otherwise extensive.

II.

The Sentencing Guidelines allow a sentencing court to adjust the base offense level for the defendant's role in the offense. See United States Sentencing Commission, Guidelines Manual, ch. 3, Part B (Nov. 1990). The court is directed to increase the base offense by four levels if the defendant was "an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive." U.S.S.G. § 3B1.1(a). The district court found that Harry was an organizer in the conspiracy, that the conspiracy had more than five participants, and that the conspiracy was otherwise extensive.

We review a district court's determination of a defendant's role in the offense under a clearly erroneous standard. United States v. Wiegers, 919 F.2d 76, 77 (8th Cir.1990). We may reverse only when we are left with the definite and firm conviction that a mistake has been made. United States v. Williams, 890 F.2d 102, 104 (8th Cir.1989) (citing United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948)).

Harry first argues that the increase was inappropriate because there were not five or more participants in the conspiracy. This argument is without merit. First, Harry himself was a participant. U.S.S.G. § 3B1.1, comment. (n.1) ("A 'participant' is a person who is criminally responsible for the commission of the offense."). See also United States v. Blandino, 954 F.2d 1436, 1437 n.2 (8th Cir.1992) (per curiam); United States v. Preakos, 907 F.2d 7, 10 (1st Cir.1990) (per curiam) (defendant is to be counted as a participant for section 3B1.1(a) purposes). Second, Harry admits in his brief that he conspired with Gary Harry, Woodward, and Lopez. Third, Harry's wife, Juanita, was indicted and found guilty in this same conspiracy. This totals five conspirators. In addition, the district court found that Lynn Woodward was a participant in her role as bookkeeper for Woodward, and the record supports this finding.

Harry argues that he was a member not of one large conspiracy, but of three smaller conspiracies. We reject this characterization of the crimes committed. Harry admitted at the plea hearing that the purpose of the conspiracy in which he was involved was to distribute both marijuana and cocaine. He and Woodward obtained large amounts of both drugs from Lopez, and they worked together to distribute them. Each knew that the other was selling drugs to third parties for resale. Harry brought his cousin, Gary, into an established network of persons who distributed drugs. Indeed, a March 1989 cocaine and marijuana transaction involved Jesse Lopez, Harry, Woodward, and Gary Harry at Gary's home. Accordingly, we find no error in the district court's finding that Harry was involved in one conspiracy involving five or more participants.

Harry next argues that the conspiracy was not "otherwise extensive." To impose an increased sentence under section 3B1.1(a), the sentencing court must find that the criminal activity involved five or more participants or be otherwise extensive. We have already decided that the conspiracy involved five or more participants. Thus, the conspiracy need not also have been otherwise extensive in...