U.S. v. Chambers

Decision Date05 February 1993
Docket Number91-5191,Nos. 91-5190,s. 91-5190
Citation985 F.2d 1263
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Walter Lee CHAMBERS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. James Isaac JOHNSON, Defendant-Appellant.
CourtU.S. Court of Appeals — Fourth Circuit

Daniel J. Clifton, Charlotte, NC, argued, for defendant-appellant Johnson.

Dale Stuart Morrison, Charlotte, NC, argued, for defendant-appellant Chambers.

Frank DeArmon Whitney, Asst. U.S. Atty., Charlotte, NC, argued (Thomas J. Ashcraft, U.S. Atty., Gretchen C.F. Shappert, Asst. U.S. Atty., on brief), for plaintiff-appellee.

Before WIDENER, MURNAGHAN, and WILLIAMS, Circuit Judges.

OPINION

WILLIAMS, Circuit Judge:

Walter Lee Chambers and James Isaac Johnson appeal their jury convictions and sentences for: (1) conspiracy to possess with intent to distribute in excess of five kilograms of cocaine, 21 U.S.C. § 846 (1988); (2) conducting an illegal gambling business, 18 U.S.C. § 1955 (1988); and (3) conspiracy to commit an offense against the United States (i.e., to conduct an illegal gambling business), 18 U.S.C. § 371 (1988). Chambers contends that the district court erred in concluding that he was a manager or supervisor and increasing his offense level under § 3B1.1(b) of the Sentencing Guidelines. United States Sentencing Commission, Guidelines Manual (Nov. 1991). Chambers urges the evidence did not support finding that he was a manager or supervisor because it did not show that he supervised any people. Chambers also contends that the district court clearly erred in finding that the drug conspiracy involved at least fifteen kilograms of cocaine. In addition, both Defendants challenge the sufficiency of evidence supporting their convictions and the failure of the district court to admit as exculpatory evidence the results of a witness's polygraph examination.

Although we conclude the evidence did not show that Chambers supervised people, we also conclude that supervision of people is not necessary to be a manager under § 3B1.1(b). Because the district court did not make any factual findings based upon Chambers's role as a manager, we vacate Chambers's sentence and remand for further fact-finding and resentencing. In all other respects, we affirm the judgments of the district court.

I

Chambers and Johnson were among twenty-three persons indicted for conducting and conspiring to conduct an illegal gambling business and were among fifteen persons indicted for conspiracy to distribute cocaine.

The cocaine conspiracy involved five cocaine houses including the "Big House," the "Yellow House," the "Blue Light," and "Cozy's." The evidence presented at trial focused primarily on Cozy's. Cozy's was the quintessential drug house. Steel bars shielded the doors and windows. Upon entering Cozy's a buyer came upon a second door with a mail slot that shielded a separate interior room. Behind the mail slot in this separate room, a coconspirator would "work the trap," i.e., exchange the buyer's cash for cocaine. The second door and interior room created a barrier for law enforcement officers to penetrate before they could actually seize the cocaine. Each morning a coconspirator would light a fire in the fireplace to destroy cocaine in case of a police search, regardless of the season or the temperature outside.

The gambling conspiracy involved an illegal numbers lottery. Bets were accepted at various locations. "Runners" or "bagmen" would take the bettors' tickets to a drop off point. The tickets were then transferred to a "bank" or "tally house" where the winning bets were determined. The location of the bank was frequently changed to avoid detection. After the winning tickets had been identified, the tickets would be put in storage for three or four days in case a winning ticket had been overlooked.

Following indictment, most of the coconspirators pled guilty pursuant to plea agreements. Chambers and Johnson chose to go to trial, and the testimony of their numerous coconspirators featured prominently in the case against them. The jury convicted them on all counts. Chambers was sentenced to 210 months imprisonment based upon a total offense level of 37. The sentence included a three level upward adjustment pursuant to § 3B1.1(b) of the Sentencing Guidelines for being a manager or supervisor. Johnson was sentenced to 121 months imprisonment based upon a total offense level of 32. Both Defendants appealed.

II

Chambers contends that the district court erred in finding that he was a manager or supervisor and increasing his offense level under § 3B1.1(b) of the Sentencing Guidelines. 1 He urges that the evidence does not support a finding that he supervised people, and therefore does not support a § 3B1.1(b) adjustment. We agree that the evidence does not support finding supervision of people; however, we conclude that under some circumstances a defendant's offense level may be increased under § 3B1.1(b) even though the defendant did not supervise anyone. Nevertheless, because the district court's factual findings were insufficient, we remand for further fact-finding and resentencing.

A

Section 3B1.1 "provides a range of adjustments to increase [a defendant's] offense level based upon the size of a criminal organization ... and the degree to which the defendant was responsible for committing the offense." U.S.S.G. § 3B1.1, comment. (backg'd). Application of the guideline involves two separate factual inquiries. First, the district court must determine the size or scope of the criminal organization. If the criminal activity involved five or more participants "or was otherwise extensive," then either § 3B1.1(a) or (b) may apply. Otherwise, § 3B1.1(c) may apply. Second, the district court must evaluate the defendant's role in the offense. If the defendant was an organizer, leader, manager, or supervisor, then the defendant's offense level should be increased. With smaller criminal organizations, the increase in the defendant's offense level is the same for each of these four roles. Id. § 3B1.1(c) (two level increase). With larger organizations (i.e., those with five or more participants), the offense level is increased more for organizers and leaders, id. § 3B1.1(a) (four level increase), than for managers and supervisors, id. § 3B1.1(b) (three level increase).

Chambers does not dispute the district court's determination that the conspiracy involved five or more participants, nor does the Government contend that he was an organizer or leader. The dispute is over whether he was a manager or supervisor.

Although the Government asked the district court to increase Chambers's base offense level based on his role as a manager, the district court's only factual finding was that Chambers "was a supervisor at some level." The district court thus treated terms "manager" and "supervisor" as synonymous. We shall treat the district court's finding as one that Chambers was a manager, as argued by the Government at sentencing, and therefore we do not address whether there is a distinction between the two terms as used in § 3B1.1.

B

We agree with Chambers that the evidence does not support a finding that he supervised people. Chambers's coconspirators testified at trial about his role in the conspiracy. They were consistent in their portrayal of what he did. They testified that Chambers was one of three or four individuals who would bring cocaine to Cozy's when the house ran low on stock, pick up the cash on hand, and take the cash away. In addition, James Edward "Ned" Johnson, the "kingpin" of the cocaine conspiracy, testified that he and Chambers were responsible for going to the stashhouse, packaging the cocaine for resale, and transferring the packaged cocaine to Cozy's. Only Chambers, Ned Johnson, and Pee Wee Givens knew the location of the stashhouse. 2

Although the witnesses testified that Ned Johnson hired and paid them, no one testified that Chambers performed a single supervisory task. Indeed, of the ten witnesses involved in the cocaine conspiracy, none testified that Chambers supervised anyone. Moreover, the basis for a § 3B1.1(b) adjustment given in the presentence report was Chambers's "high ranking position within the conspiracy" and his privileged knowledge of the location of the stashhouse. (J.A. 741.) The presentence report does not indicate that Chambers supervised any of his coconspirators. In short, the evidence does not support finding that Chambers supervised people.

C

Chambers argues that a defendant who did not supervise people cannot be considered a manager or supervisor within the meaning of § 3B1.1(b). We disagree. In United States v. Paz, 927 F.2d 176 (4th Cir.1991), we affirmed a defendant's sentence based upon his management of property. In Paz, the defendant argued that the evidence showed he was a courier, not a manager. We disagreed:

[E]vidence indicated that Paz controlled the money, drug products and residences where the drug trafficking was performed. From this evidence, the district court concluded that Paz was a manager of the enterprise. We are not persuaded that this factual determination was clearly erroneous.

Id. at 180; see also United States v. Johnson, 906 F.2d 1285, 1291-92 (8th Cir.1990) ("A finding that a defendant is functioning as an organizer or leader, however, does not necessarily mean that he is directly controlling other individuals."); United States v. Mares-Molina, 913 F.2d 770, 776 (9th Cir.1990) (Rymer, J., dissenting) (plain meaning of "manager" includes management of property).

Other circuits have disagreed with our holding in Paz. See United States v. Fuentes, 954 F.2d 151, 154 (3d Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 2950, 119 L.Ed.2d 573 (1992); United States v. Mares-Molina, 913 F.2d 770, 773-74 (9th Cir.1990); United States v. Reid, 911 F.2d 1456, 1464 (10th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 990, 112 L.Ed.2d 1074 (...

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