U.S. v. Graham
| Decision Date | 22 December 1998 |
| Docket Number | 97-3139,Nos. 97-3138,s. 97-3138 |
| Parties | UNITED STATES of America, Appellee v. Perry A. GRAHAM, Appellant , and 97-3151. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Pleasant S. Brodnax, III, appointed by the court, argued the cause and filed the brief for appellant Perry A. Graham.
Robert E. Sanders, appointed by the court, argued the cause and filed the briefs for appellant Terrence A. Terrell.
Mary E. Davis, appointed by the court, argued the cause and filed the brief for appellant Roger V. Smith.
Barbara A. Grewe, Assistant U.S. Attorney, argued the cause for appellee. On the brief were Wilma A. Lewis, U.S. Attorney, John R. Fisher, Mary-Patrice Brown, Lynn C. Leibovitz and Clark W. Metz, Assistant U.S. Attorneys.
Before: EDWARDS, Chief Judge, GINSBURG and ROGERS, Circuit Judges.
In United States v. Graham, 83 F.3d 1466 (D.C.Cir.1996), we affirmed the convictions of Terrence Terrell, Perry Graham, and Roger Smith for various narcotics related offenses as members of the "Newton Street Crew," but vacated the sentences so that the district court could (1) make individualized Rule 32 findings on challenges to the Presentence Report, (2) make adequate findings on the volume of drug sales attributable to each appellant, and (3) explain the foundation for finding that Terrell played a managerial role in the conspiracy. Appellants now appeal from resentencing on their convictions for conspiracy to distribute a large volume of crack, each attempting to minimize his role in the conspiracy and thereby reduce his sentence. Our focus is on Terrell's contention that the district court erred in enhancing his base offense level by three levels under U.S.S.G. § 3B1.1(b) for serving as a manager or supervisor within the conspiracy. Because the government's evidence was deficient in that regard, and because we conclude that Graham's and Smith's contentions lack merit, as do Terrell's other contentions, we affirm the judgments of resentencing for Graham and Smith but vacate the adjustment of Terrell's base offense level and remand Terrell's case for resentencing.
The most relevant conviction for sentencing purposes was count one of the indictment, which charged conspiracy to distribute crack cocaine. The sentence on count one is the longest for each appellant; the remaining sentences run concurrently. Upon resentencing after remand, the district court made detailed findings about appellants' participation in the Newton Street crack distribution ring. The court then applied the 1995 Guidelines to impose the following sentences:
Terrell and Smith:
Base Offense Level: 38
Managerial Role Adjustment: k3
Criminal Hist. Category: I
Range: 324"405 months
Sentence: 324 months
Graham
Base Offense Level: 39
Managerial Role Adjustment: k3
Criminal Hist. Category: I
Range: 360"Life
Sentence: 360 months
Under the 1995 Sentencing Guidelines, distribution of more than 1.5 KG of cocaine base ("crack") warrants a base offense level of 38. See U.S.S.G. § 2D1.1(c)(1). A defendant is responsible for the drugs that he personally distributed as well as the "reasonably foreseeable" distribution by "others in furtherance of [a] jointly undertaken criminal activity, that occurred during the commission of the offense of conviction,...." U.S.S.G. § 1B1.3(a)(1). The district court must determine weights by a preponderance of the evidence subject to appellate review for clear error. See United States v. Lam Kwong-Wah, 966 F.2d 682, 685-688 (D.C.Cir.1992).
The district court found that Terrell was responsible for approximately 19 KG of crack, as follows: approximately 2 KG sold, 6.5 KG packaged, 6.5 KG distributed by coconspirator Frank Lynch, and 4.5 KG distributed by Graham. As we understand Terrell's position, he generally challenges the district court's methodology for calculating distribution weights without proposing an alternative interpretation of the record that would reduce his liability below 1.5 KG. In any event, each of his arguments, save one, lacks merit. 1
Terrell's sole persuasive challenge to his sentence arises from the district court's imposition of a three-level enhancement under U.S.S.G. § 3B1.1(b) for being a "manager or supervisor (but not an organizer or leader)" of the charged criminal activity. In essence, Terrell contends that the record shows only that he was a gofer rather than a manager, and that he therefore was insufficiently culpable to justify an enhancement.
The Sentencing Guidelines permit the district court to adjust base offense level because of a defendant's "aggravating role" in an offense. U.S.S.G. § 3B1.1. The magnitude of the enhancement varies with the culpability of the defendant: 4 levels for leading or organizing relatively extensive criminal activity; 3 levels for managing or supervising such activity; and 2 levels for leading, organizing, managing, or supervising relatively confined criminal activity. See id. An enhancement under § 3B1.1 must be supported by the preponderance of the evidence, see United States v. Thomas, 114 F.3d 228, 261 (D.C.Cir.1997), but such evidence may be circumstantial, see United States v. Layeni, 90 F.3d 514, 524 (D.C.Cir.1996). We review the district court's factual findings for clear error and accord "due deference to the district court's application of the guidelines to the facts." 18 U.S.C. § 3742(e); see also United States v. Bapack, 129 F.3d 1320, 1324 (D.C.Cir.1997).
According to the Guidelines, an average drug dealer who sold the same amount of crack as Terrell would have received an offense level of 38. Terrell, however, received an adjusted offense level of 41 because the district court concluded that his drug dealing activity was more culpable, based on his supervisory role within a large conspiracy, than that of many of his fellow drug dealers. This interpretation of the culpability standards in § 3B1.1(b) stretches the guideline beyond recognition. 2
In applying § 3B1.1(b), the district court relied on three factual conclusions. First, the district court concluded that Terrell was a "lieutenant" in the Newton Street Crew. The court's sole support in the record for this conclusion is the testimony of William Woodfork, who stated that Terrell was "sometimes" a lieutenant. Nothing in Woodfork's testimony explains how often Terrell acted as a lieutenant, what actions Terrell performed when purportedly acting as a lieutenant, whether all lieutenants acted alike, or--most importantly--why he believed that Terrell was a lieutenant, as opposed to some other type of cog in the Newton Street machine. Woodfork's testimony is therefore a vivid illustration of why conclusory labels are inadequate when assessing culpability under § 3B1.1. See, e.g., Thomas, 114 F.3d at 260; United States v. Sostre, 967 F.2d 728, 733 n. 5 (1st Cir.1992). 3 Hence this testimony cannot provide a basis for a § 3B1.1(b) enhancement.
Second, the district court found that Terrell acted "in effect" as a "block overseer" by directing potential drug buyers to fellow conspirators acting as sellers. The phrase "block overseer" does not appear to be part of the Newton Street lexicon, but, in any event, the title is substantially inflated given that the testimony cited by the district court shows only that Terrell, in the course of selling drugs, would point customers to the people carrying drugs. 4 We agree with the First and Tenth Circuits that the mere act of directing buyers to sellers does not constitute management or supervision warranting an enhancement. See Sostre, 967 F.2d at 733; United States v. Roberts, 14 F.3d 502, 524 n. 37 (10th Cir.1993). Chapter 3B1.1(b) targets managers, not concierges and bellhops.
Third, the district court found that Terrell operated within a middle-zone of the Newton Street Crew hierarchy. The evidence supports this view of Terrell, but we conclude that not being at the bottom rung of a conspiracy is merely a necessary but not a sufficient condition to justify an enhancement under § 3B1.1(b).
Terrell was not one of the most junior members of the Newton Street Crew. The district court found that Terrell was part of a distribution "clique" with Graham (who is Terrell's cousin), Smith, and Lynch, under the overall leadership of Mark Hoyle and John McCollough. At the bottom rung of this clique were runners and "pipeheads" who assisted in the day-to-day operations of the conspiracy. Terrell was more than just a runner, and he apparently was not a "pipehead." Rather, Terrell on occasion provided a runner with crack and worked closely with individuals, such as Graham and Lynch, who were central figures in the Newton Street conspiracy. For example, Lynch testified that he stored drugs at Terrell's house and relied on Terrell to direct customers to him. This fact establishes that Terrell was a crack dealer; but it does not indicate that he supervised other dealers. Indeed, to the extent relevant at all, Lynch's testimony demonstrates that Terrell was a subordinate to Lynch, who was a lieutenant, rather than a lieutenant in his own right. Likewise, the fact that Terrell is Graham's cousin is, by itself, insufficient to prove that Terrell acted as a manager or supervisor. See Roberts, 14 F.3d at 524.
Terrell differed from his co-defendants in material respects. For example, witnesses testified that Terrell was essentially a 'wannabe' who liked hanging out with his drug dealing friends and relatives, and wearing flashy clothes purchased with drug money, but who could not be trusted with operational control over the enterprise. Indeed, when Terrell asked Hoyle to supply him with drugs, Hoyle refused because Terrell...
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