U.S. v. Richardson, s. 89-5263
| Decision Date | 06 August 1991 |
| Docket Number | Nos. 89-5263,89-5264 and 90-7045,s. 89-5263 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Egbert RICHARDSON, a/k/a Bunny, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Ivan TAYLOR, a/k/a Carlos, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Egbert RICHARDSON, a/k/a Bunny, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Steven Douglas Dennis, Holler, Dennis, Olive, Merry, Lengel & Garner, Columbia, S.C., argued (Victor T. Gutierrez, Law Offices of Victor T. Gutierrez, Miami, Fla., and Thomas B. Levy, Sr., on briefs, Columbia S.C.), for defendants-appellants.
Mark C. Moore, Asst. U.S. Atty., argued (E. Bart Daniel, U.S. Atty., Robert C. Jendron, Jr., Asst. U.S. Atty., on brief), Columbia, S.C., for plaintiff-appellee.
Before RUSSELL, Circuit Judge, CHAPMAN, Senior Circuit Judge, and DUPREE, Senior United States District Judge for the Eastern District of North Carolina, sitting by designation.
Ivan Taylor, Egbert Richardson, Anna Jean Bradley, and Freddie Lloyd were indicted for conspiracy to possess with intent to distribute cocaine in violation of 21 U.S.C. Sec. 846. Taylor and Richardson were also indicted for possession of cocaine with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1) and (b)(1)(B). Taylor, Richardson and Bradley entered pleas of guilty to the conspiracy count, and Taylor received a sentence of 190 months, Richardson 200 months, and Bradley 97 months. All the sentences contained a five year period of supervised release. The appellants had been sentenced prior to the time that Freddie Lloyd was arrested. Appellants Taylor and Richardson agreed to testify for the government in the Lloyd trial. Shortly after Richardson testified, Lloyd entered a plea of guilty. The government then filed a motion for correction of sentence under Federal Rule of Criminal Procedure 35(b) as to both Taylor and Richardson and the district court reduced the sentences of both Taylor and Richardson by 35 months each.
Appellants Taylor and Richardson appeal their sentences. Taylor claims that the district court erred in classifying him as an organizer or leader of five or more participants under U.S. Sentencing Guideline (U.S.S.G.) Sec. 3B1.1(a) and increasing his offense level by four, because he claims the evidence showed that he was only a supplier of cocaine and not an organizer or leader. He also claims error by the district court in failing to grant him a further downward departure particularly in view of the motion of the government supporting a downward departure and the substantial assistance given by him and a downward departure for a less deserving codefendant. Richardson claims error in his sentence because the district court found: (1) that he was reasonably capable of producing ten kilograms of cocaine under negotiations he had with an undercover agent; (2) that it was reasonably foreseeable to Richardson that Taylor would be able to sell additional cocaine in South Carolina without his personal involvement; and (3) that he was an organizer or leader under U.S.S.G. Sec. 3B1.1(c). Richardson also claims error because the district court did not reduce his sentence proportionately with his codefendant.
Egbert Richardson lived in Miami with his common law wife, Anna Jean Bradley. 1 In 1984, Richardson met Ivan Taylor, an Hispanic Miami businessman, who operated a small furniture factory, and they decided to go into the cocaine business. Taylor was to provide the money and Richardson was to arrange the purchase and sale of the cocaine. It was not long before Taylor began to take a more active role in the business. Taylor found that Richardson was unreliable because he personally used cocaine and was often short cocaine and money that had been received. Taylor and Richardson soon parted company, and Taylor began to deal directly with suppliers and consumers to whom he had been introduced by Richardson.
In 1987, Richardson returned to Taylor with another cocaine proposition. Richardson had been traveling in South Carolina, and he advised Taylor that the Holly Hill and Orangeburg areas of South Carolina and the area around High Point, North Carolina were "dry" and in need of cocaine. He argued that the partners could prosper from the consumer demand and the high prices available in these areas. In the fall of 1987, Richardson and Taylor traveled by plane to Charleston, South Carolina where they met Richardson's friend, Freddie Lloyd. Taylor had brought with him approximately one kilogram of cocaine and had paid Richardson's travel expenses. The appellants then traveled with Lloyd to Lee County where they met Henry Lee Harris and Anthony Joe McFadden, who purchased Taylor's kilo of cocaine for $22,000. Charles Mason Jones and Willard Scott Wearing were also present at this meeting. Richardson and Taylor then returned to Miami, but approximately two weeks later they returned to South Carolina. Just prior to their return to South Carolina, they had made a trip to North Carolina to deliver cocaine to a buyer produced by Richardson. The buyer was known only as Charlie.
On this second trip to South Carolina, Richardson and Taylor traveled by automobile and stopped at a motel in Santee, South Carolina. Taylor had with him approximately one pound of cocaine. Richardson vanished with half of the cocaine and Taylor's car. Richardson later explained that he used most of the cocaine to party with several female friends.
Taylor returned to Miami alone and complained of Richardson's behavior to Bradley, who advised him that she was not responsible for Richardson, and that Richardson had cost her money by running up large telephone bills without payment.
After this trip to South Carolina, Taylor had nothing further to do with Richardson. However, Taylor returned to South Carolina on several occasions and eventually sold approximately 13 kilos of cocaine to McFadden and Harris, and he sold an additional two and a half kilos in North Carolina to the buyer he had previously met through Richardson. The South Carolina customers were eventually arrested for cocaine trafficking and they identified Taylor and Richardson as the source of their cocaine supply.
Prior to arresting Taylor and Richardson, a South Carolina law enforcement division (SLED) agent, who had obtained Richardson's telephone number when Harris and McFadden were arrested, contacted Richardson by telephone and attempted to purchase ten kilograms of cocaine. This deal was never consummated. Although the SLED agent wired $1300 in expense money to Florida, most of these funds ($1,000) went to Bradley, who advised the SLED agent that she might be able to put together a large purchase for him.
After Richardson, Taylor and Bradley were arrested, Richardson was the first to admit guilt and enter into a plea agreement. Eventually Taylor and Bradley also pled guilty. At sentencing, the court found that Taylor had a total offense level of 34 with a criminal history category II. This calculation was derived from using a base offense level of 32 from the court's finding that the total amount of cocaine attributable to Taylor was 13 kilograms, then adding a four level increase as a leader or organizer under Sec. 3B1.1, and a two level reduction for acceptance of responsibility under Sec. 3E1.1. These calculations produced a guideline range of 160 to 210 months and the court entered a sentence of 190 months in prison to be followed by a five year period of supervised release. Approximately one month after the sentencing of Taylor and Richardson, Freddie Lloyd was arrested. Both Taylor and Richardson agreed to testify against Lloyd. After Lloyd's trial began, Richardson was the government's first witness. When he had completed his testimony, Lloyd entered a guilty plea. The government then filed a motion for correction of sentence under Rule 35(b) and the district court reduced Taylor's sentence by 35 months leaving him with a corrected sentence of 155 months.
At the sentencing of Richardson, the court found his total offense level to be 36 with a criminal history category I. This calculation resulted from use of a base offense level of 32 upon a finding by the court that the total amount of cocaine attributable to Richardson was 23 kilograms. This weight was derived by adding the amount distributed by Richardson to the amounts distributed by Taylor, after the partnership ended, and the ten kilograms under negotiation by telephone with the SLED agent from South Carolina. Richardson also received a four level increase under Sec. 3B1.1 and a two level reduction for acceptance of responsibility under Sec. 3E1.1. These calculations resulted in a guideline range of 188 months to 235 months, and Richardson received a sentence of 200 months in prison to be followed by a five year term of supervised release. As a result of the government's motion following Freddie Lloyd's plea of guilty, the court reduced Richardson's sentence by 35 months leaving a corrected sentence of 165 months.
Taylor claims error by the sentencing judge in finding that he was leader of a criminal activity that involved five or more participants and increasing his offense level by four under Sec. 3B1.1(a) which provides "[i]f the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive, increase by 4 levels."
The adjustments in the offense level under Sec. 3B1.1(a) for the defendant's role in the offense are factual determinations and the district court's findings on this issue are reviewed under a clearly erroneous standard. United States v. Daughtrey, 874 F.2d 213 (4th Cir.1989). The record shows that Richardson had the initial contacts in South Carolina and North Carolina that were used to distribute cocaine, but that...
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