United States v. Sampson , 140 F.3d 585 ( 1998 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 96-4431
ERIC CREIGHTON SAMPSON, a/k/a Big
E,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4446
CEDRIC LAMONT DEAN, a/k/a Ced,
Defendant-Appellant.
Appeals from the United States District Court
for the Western District of North Carolina, at Charlotte.
William L. Osteen, Sr., District Judge, sitting by designation.
(CR-95-31)
Argued: January 30, 1998
Decided: April 2, 1998
Before MURNAGHAN, NIEMEYER, and MOTZ, Circuit Judges.
_________________________________________________________________
Affirmed in part and vacated and remanded in part by published opin-
ion. Judge Motz wrote the opinion, in which Judge Murnaghan and
Judge Niemeyer joined.
_________________________________________________________________
COUNSEL
ARGUED: Noell Peter Tin, FERGUSON, STEIN, WALLAS,
ADKINS, GRESHAM & SUMTER, P.A., Charlotte, North Carolina;
Sharon Dunigan Jumper, Charlotte, North Carolina, for Appellants.
Gretchen C.F. Shappert, Assistant United States Attorney, Charlotte,
North Carolina, for Appellee. ON BRIEF: Stephen Luke Largess,
FERGUSON, STEIN, WALLAS, ADKINS, GRESHAM & SUM-
TER, P.A., Charlotte, North Carolina, for Appellants. Mark T. Cal-
loway, United States Attorney, Charlotte, North Carolina, for
Appellee.
_________________________________________________________________
OPINION
DIANA GRIBBON MOTZ, Circuit Judge:
A jury convicted Eric Creighton Sampson and Cedric Lamont
Dean of various narcotics and firearms offenses. The district court
sentenced Sampson to life imprisonment and Dean to life imprison-
ment plus five years. Sampson and Dean appeal, asserting several trial
and sentencing errors. We affirm the convictions and Sampson's sen-
tence; however, we vacate Dean's sentence and remand for resentenc-
ing consistent with this opinion.
I.
The government produced evidence at trial that Sampson, Dean,
and numerous other persons engaged in a three-year conspiracy to
distribute cocaine and cocaine base (crack). The conspiracy took
place from 1992 to 1995. The co-conspirators sold drugs in the home
of Mack Hopper, which is located within one thousand feet of a play-
ground, the Boulevard Homes and Southside Homes, both of which
are public housing facilities, and at the Little Rock Apartments.
Two of the defendants' co-conspirators, Mack Hopper and Marcus
Massey, testified at length as to the multiple illegal activities of
Sampson and Dean. Hopper related that he frequently sold crack for
Sampson and with Dean, and that Dean carried and brandished a gun
2
during robberies of other drug dealers. Massey corroborated this testi-
mony and explained that he, Hopper, Dean, Sampson, and others
engaged in a wide-ranging drug conspiracy in which six or more per-
sons worked for Sampson and Dean.
In addition, both Hopper and Massey testified that, along with
Dean and Sampson, they sold "flex" (counterfeit cocaine) to unsus-
pecting purchasers. Massey recounted a botched sting operation in
which he and Dean attempted to sell to undercover officers $8,000
worth of flex, but instead were arrested. Several other drug dealers
and users corroborated Hopper and Massey's damaging testimony.
On the basis of this evidence, the jury convicted Sampson and
Dean of conspiring to distribute cocaine and cocaine base within one
thousand feet of a playground or public housing facility in violation
of 21 U.S.C.A. §§ 841(a)(1), 846 and 860 (West 1981 & Supp. 1997).
In addition, the jury found Dean guilty of possession with intent to
distribute cocaine base in violation of 21 U.S.C.A.§ 841(a)(1), of
using or carrying a firearm in connection with a drug trafficking
crime in violation of 18 U.S.C.A. § 924(c)(1) (West Supp. 1997), and
of possession of a firearm by a convicted felon in violation of 18
U.S.C.A. §§ 922(g)(1) and 924(a)(2) (West Supp. 1997).
On appeal, Sampson and Dean contest their convictions and their
sentences. We turn first to the challenges to their convictions.
II.
A.
One count of the indictment charged Sampson and Dean with con-
spiracy to violate 21 U.S.C.A. § 841(a)(1) which prohibits distribu-
tion of crack cocaine. Sampson and Dean maintain that the
government constructively amended this count, effectively prosecut-
ing them for conspiracy to distribute counterfeit cocaine in violation
of 21 U.S.C.A. § 841(a)(2) (West Supp. 1997), in addition to conspir-
acy to distribute genuine cocaine in violation of 21 U.S.C.A.
§ 841(a)(1). Their contention is meritless.
3
First, contrary to Sampson's and Dean's arguments, the "crime" the
government assertedly amended the indictment to charge them with
is not forbidden by § 841(a)(2). A plain reading of § 841(a)(2) clearly
demonstrates that flex is not a "counterfeit substance" within the
meaning of that statute. A "counterfeit substance" under § 841(a)(2)
is defined as:
a controlled substance which, the container or the labeling
of which, without authorization, bears the trademark, trade
name, or other identifying mark, imprint, number or device,
or any likeness thereof, of a manufacturer, distributor, or
dispenser other than the person or persons who in fact man-
ufactured, distributed, or dispensed such substance and
which thereby falsely purports or is represented to be the
product of, or to have been distributed by, such other manu-
facturer, distributor, or dispenser.
21 U.S.C.A. § 802(7) (West 1981) (emphasis added).
A "controlled substance," in turn, is defined as "a drug or other
substance . . . included in schedule I, II, III, IV, or V of part B of this
subchapter." 21 U.S.C.A. § 802(6) (West Supp. 1997). Those sched-
ules do not list "flex." Nor is it reasonable to conclude that flex,
which (trial testimony established) is made out of"candle wax, flour
and baking soda," would be considered a controlled substance under
the statute. Thus, § 841(a)(2) is patently inapplicable. That statute
seems to have been designed to prosecute the unauthorized use of
controlled substances found in commercial settings such as prescrip-
tion drugs, not those sold in street deals. For example, "dispenser" is
statutorily defined as a "practitioner who so delivers a controlled sub-
stance to an ultimate user or research subject," 21 U.S.C.A. § 802(10)
(West 1981); and "practitioner" is defined as a "physician, dentist,
veterinarian, scientific investigator, pharmacy, hospital or other per-
son licensed, registered, or otherwise permitted . .. to distribute, dis-
pense, [or] conduct research." 21 U.S.C.A.§ 802(21) (West Supp.
1997).
Selling flex does not constitute a crime punishable by any known
federal law. Simply because a substance looks like cocaine, and the
defendant misrepresents to his unsuspecting purchaser that the sub-
4
stance is cocaine, does not make the mere distribution of that sub-
stance a violation of the federal narcotics laws.
Sampson and Dean nonetheless maintain that "whether flex sales
are an indictable offense or not," the government improperly broad-
ened the basis on which to convict them beyond that contained in the
indictment. Reply Brief at 3. This argument misunderstands what is
necessary for a court to find that an indictment was constructively
amended. We must find that "either the government (usually during
its presentation of evidence and/or its argument),[or] the court (usu-
ally through its instructions to the jury), or both, broadens the possible
bases for conviction beyond those presented by the grand jury."
United States v. Floresca, 38 F.3d 706, 710 (4th Cir. 1994) (en banc).
For a constructive amendment to have occurred, therefore, the gov-
ernment's presentation at trial, must expose defendant to criminal
"charges that are not made in the indictment against him." Id. at 711(quoting Stirone v. United States, 361 U.S. 212, 217 (1960)). In this
case, Sampson and Dean could not be, and were not, convicted of a
crime based on selling flex. The government did not urge the jury to
convict Sampson and Dean because they sold flex; the district court
did not instruct the jury that it could convict them of selling flex; and
selling flex is not illegal under federal law.
True, the government did introduce evidence of flex sales, but
merely as one of many "overt acts" undertaken by the co-conspirators
that demonstrated the existence of the conspiracy. Defendants' only
real challenge, therefore, is apparently one of relevancy. Sampson and
Dean were charged with unlawfully conspiring to distribute illegal
narcotics. To prove this charge, the government must demonstrate:
"(1) an agreement between two or more persons (not including gov-
ernment agents), (2) to commit in concert an unlawful act," which in
this case is to distribute illegal narcotics. United States v. Giunta, 925
F.2d 758, 764 (4th Cir. 1991), overruled on other grounds by United
States v. Burgos, 94 F.3d 849 (4th Cir. 1996). Proof of the first prong
-- that the co-conspirators agreed to commit an unlawful act -- is
often established through indirect evidence. See United States v.
Morsely, 64 F.3d 907, 919 (4th Cir. 1995). Accordingly, the govern-
ment can introduce a wide variety of lawful conduct to demonstrate
that co-conspirators maintained the trust and comfort necessary to
conspire to commit unlawful acts. Here, two witnesses, Hopper and
5
Massey, testified to first-hand knowledge that Sampson and Dean
agreed to sell flex in lieu of cocaine to turn a quick profit so that they
could purchase more illegal narcotics in furtherance of their drug
operation. Thus, evidence of these flex sales, which was not itself
criminal conduct, proves highly relevant to demonstrating that Samp-
son and Dean worked in concert to violate federal narcotics laws.
In sum, the government did not constructively amend the indict-
ment by charging the defendants with selling flex, and the district
court did not err in admitting evidence of the flex sales.
B.
Dean argues that his conviction under 18 U.S.C.A.§ 924(c)(1) for
using or carrying a firearm in the commission of a narcotics felony
should be reversed because the court's jury instructions failed to prop-
erly define the term "use" under § 924(c)(1) in conformity with the
Supreme Court's dictates in United States v. Bailey, ___ U.S. ___,
116 S. Ct. 501 (1995).
Section 924(c)(1) makes it a crime for anyone to use or carry a fire-
arm "during and in relation to any crime of violence or drug traffick-
ing crime." 18 U.S.C.A. § 924(c)(1). Here, the district court,
consistent with then-existing circuit precedent, instructed the jury
that:
a person is considered to have used a firearm if its presence
in his possession -- regardless of whether that possession
was actual, constructive, sole or joint -- facilitated in any
manner with drug [sic] trafficking offense. In determining
whether a firearm facilitated and had a relation to the drug
trafficking offense, it is not necessary to find that the fire-
arm was fired.
After trial in this case, the Supreme Court issued its Bailey decision,
holding that, to satisfy the "use" prong of§ 924(c)(1), the government
must demonstrate that the defendant actively employed the weapon
by, for example, "brandishing, displaying, bartering, striking with [or]
. . . firing or attempting to fire" the firearm. Bailey, 116 S. Ct. at 508.
The instructions given, therefore, constituted error under Bailey.
6
Because Dean did not object at trial, however, our review is for
plain error as defined in United States v. Olano , 507 U.S. 725, 731
(1993). See, e.g., United States v. Martinez, ___ F.3d ___, No. 95-
5331, 1998 WL 63816 (4th Cir. Feb. 18, 1998). Dean must demon-
strate that the instruction constituted (1) error, (2) which is plain, and
(3) which "affects substantial rights," i.e. that it was prejudicial.
Martinez, 1998 WL 63816, at *3. We retain discretion to correct the
error only "if it seriously affects the fairness, integrity or public repu-
tation of judicial proceedings." Id. (internal brackets and quotations
omitted).
Clearly, the instruction here is erroneous and the error is plain.
However, Dean cannot demonstrate that the error affected his sub-
stantial rights. This is so because the only evidence the government
offered that Dean had violated § 924(c)(1) demonstrates that he car-
ried or brandished firearms in furtherance of the drug conspiracy. The
government presented no evidence of pre-Bailey passive "use" by
Dean, e.g., a gun nearby during Dean's participation in a drug deal.
Of course, the jury could have chosen to disbelieve the government's
evidence and acquit Dean of violating § 924(c). But the jurors did not
do this. Instead, they found Dean guilty of violating § 924(c). In
doing so, they must necessarily have found that Dean brandished or
carried the firearms, given that this evidence of"active" use was the
only kind of "use" evidence before them. Accordingly, the erroneous
jury instruction did not affect Dean's substantial rights.
C.
Dean, who had represented himself during the two days of trial
with Sampson's attorney acting as his standby counsel, also contends
that the district court erred in denying his motion for a continuance
when he fell ill. Because Dean expressly agreed to have his standby
counsel replace him not only during his illness but for the remainder
of the trial, and because the district court ensured that Dean's right to
competent counsel was not jeopardized by the replacement, this
claim, too, lacks merit.
We review the district court's decision to deny a continuance for
abuse of discretion. See Franken v. United States, 248 F.2d 789 (4th
Cir. 1957). However, because a defendant maintains a Sixth Amend-
7
ment right to be represented by counsel of his choice, "a trial court
must exercise its discretion" with great care when denying a continu-
ance that defendant has requested for the purpose of obtaining or
maintaining the counsel of his choice. United States v. Bragan, 499
F.2d 1376, 1379 (4th Cir. 1974). In such situations, the trial court
must avoid "a myopic insistence upon expeditiousness in the face of
a justifiable request for delay [that] can render the right to defend with
counsel an empty formality." Id. (quoting Ungar v. Sarafite, 376 U.S.
575, 589 (1964)). Here, the district court proceeded carefully and cor-
rectly.
On the morning after Dean fell ill, he requested that the court con-
tinue the trial. When the court denied this request, Dean asked that his
standby counsel be allowed to take over cross-examination of wit-
nesses and defense of the case. The court granted Dean's request only
after it obtained assurances from standby counsel that she could
assume Dean's defense on such short notice in light of her intimate
knowledge of the case and her close collaboration with Dean during
trial preparation. Nothing in the record suggests that Dean contempo-
raneously objected to the district court's decision or claimed that this
replacement deprived him of his right to counsel. In fact, once Dean
was feeling better, the district judge gave him the opportunity to
resume his own defense, which he rejected, preferring that standby
counsel continue in his stead.
Accordingly, because Dean consented to the assumption of his
defense by standby counsel, and the district court took pains to ensure
the adequacy of that representation, we must reject Dean's appellate
contention that the court "force[d] the unsolicited participation of
counsel" on Dean in denying his motion for continuance.
III.
Sampson and Dean contend that even if we affirm their convic-
tions, we must nonetheless vacate their sentences and remand for
resentencing because the district court erroneously calculated their
sentences. They contend that the district court erred in three respects.
A.
Initially they assert that the court erred in calculating the amount
of drugs attributable to each of them. The court attributed the crack
8
equivalent of over 1 1/2 kilograms of cocaine to Sampson and
between 1/2 and 1 1/2 kilograms of cocaine to Dean.
Sampson and Dean challenge the testimony supporting these
amounts as vague, uncorroborated, speculative, and thus not credible.
"In reviewing sentences imposed under the [United States Sentenc-
ing] Guidelines, we must give `due regard to the opportunity of the
district court to judge the credibility of the witnesses, and shall accept
the findings of fact of the district court unless they are clearly errone-
ous.'" United States v. Uwaeme, 975 F.2d 1016, 1018 (4th Cir. 1992)
(quoting 18 U.S.C. § 3742(e) (1988)). A defendant's base offense
level under the Guidelines for drug conspiracy cases is determined by
the amount of drugs "reasonably foreseeable to him within the scope
of his unlawful agreement." United States v. Lamarr, 75 F.3d 964,
972 (4th Cir. 1996) (internal quotations omitted).
"Neither the Guidelines nor the courts have required precise calcu-
lations of drug quantity." Uwaeme, 975 F.2d at 1019. Rather,
"[w]here there is no drug seizure or the amount seized does not reflect
the scale of the offense, the district court shall approximate the quan-
tity to be used for sentencing." U.S.S.G. § 2D1.1, comment. (n. 12);
see also Uwaeme, 975 F.2d at 1019. A district court may properly
convert cash amounts linked credibly to the defendant's purchase or
sale of narcotics so long as the court does not engage in double count-
ing of both the proceeds and the narcotics themselves. Morsely, 64
F.3d at 915-16. Direct or hearsay testimony of lay witnesses as to the
amounts attributable to the defendant can provide sufficiently reliable
evidence of quantity. See United States v. Cook , 76 F.3d 596, 604 (4th
Cir. 1996); Lamarr, 75 F.3d at 972; United States v. D'Anjou, 16 F.3d
604, 614 (4th Cir. 1994); Uwaeme, 975 F.2d at 1019. Where wit-
nesses' estimates of drug amounts are uncertain, however, a district
court is well advised to sentence at the low end of the range to which
the witness testified. See, e.g., Cook , 76 F.3d at 604; Lamarr, 75 F.3d
at 972 (citing United States v. Sepulveda, 15 F.3d 1161 (1st Cir.
1993)).
The majority of the evidence relied upon by the district court in this
case consists of eyewitness testimony regarding precise amounts of
cocaine attributable to the defendants. With respect to Dean, the dis-
trict court attributed 24 ounces of crack cocaine based on firsthand
9
accounts of drug robberies in which Dean directly participated. More-
over, on the few occasions where the witnesses provided the court
with a range of drug amounts, the district court attributed the lowest
amount to Dean. Similarly, with respect to Sampson, the district court
specifically credited the testimony of Charles Guy who testified that
he observed Sampson dealing about $2,000 of crack per week for an
entire year, which could total as much as 78 ounces of crack. The dis-
trict court, however, only attributed one ounce of crack for 45 weeks,
or 45 ounces, to Sampson.
In addition to these amounts, the district court attributed to Samp-
son and Dean nine ounces of crack cocaine, equaling the $8,000 pro-
ceeds that they obtained from the flex sale made to undercover agents.
Sampson and Dean maintain that the court erred because the govern-
ment presented insufficient evidence to determine whether the $8,000
procured from the flex sale would have been reinvested into their
drug operation. The district court reasoned that while it could not
count the amount of flex directly into the quantities of narcotics
attributable to defendants, it could count the drug-equivalent of the
proceeds from the flex sale based on evidence that defendants gener-
ally used such proceeds to buy "drugs, and other things."
Because flex is not a controlled substance, the district court prop-
erly recognized that the sale, standing alone, could not be attributed
to defendants as if it were a drug sale. The court also correctly con-
cluded that it could count the proceeds from the flex sale to the extent
those proceeds were used to purchase illegal drugs . See United States
v. Hicks, 948 F.2d 877, 882 n.4 (4th Cir. 1991) (affirming district
court's conversion of cash seized from defendant's home to drug
equivalent because "there was ample evidence on which the district
court could have found that all the money was the proceeds of drug
transactions") (emphasis added); United States v. Gonzalez-Sanchez,
953 F.2d 1184, 1186-87 (9th Cir. 1992) (holding district court clearly
erred in attributing drug-equivalent of cash seized at defendant's
home where no evidence "of a connection between the money seized
and a drug transaction" was before the court). The difficulty here is
that no evidence before the district court specifically linked the entire
$8,000 of flex proceeds to the defendants' purchase or sale of narcot-
ics. Rather, the only pertinent evidence demonstrates that defendants
customarily invested a portion of flex sale proceeds to buy drugs,
10
with the remainder used for lawful purchases such as"clothes [and]
cars." To be sure, this evidence demonstrates that some portion of the
flex transaction is linked to defendants' drug transactions, and thus
supports the district court's attribution of that portion to defendants.
This evidence, however, does not adequately support attributing the
entire $8,000 to Sampson and Dean. Accordingly, the district court
erred in converting all $8,000 into its equivalent drug amount.
Although the evidence before the district court did not adequately
support attributing all the proceeds of the flex sale to Dean and Samp-
son, this error is harmless.1 Even if the nine ounces of crack related
to the flex sale proceeds is subtracted from the total amount of narcot-
ics attributable to defendants, they remain at the same base offense
levels. The district court attributed 35 1/4 ounces of crack (roughly
equal to one kilogram of cocaine) to Dean and assigned him a base
offense level of 36 for dealing between 1/2 and 1 1/2 kilograms of
cocaine. Even without the nine ounces of crack associated with the
flex proceeds, Dean's total amount nonetheless falls between 1/2 and
1 1/2 kilograms, placing him at level 36. Similarly, based on the testi-
mony of Charles Guy alone, Sampson is responsible for distributing
45 ounces of crack. This amount, combined with other testimony link-
ing Sampson to numerous other deals, brings his total narcotics level
to well above 1 1/2 kilograms, even without attribution of the nine
ounces of crack associated with the flex proceeds, leaving his base
offense level of 38 unchanged.
B.
Sampson and Dean next assert that the district court calculated
their sentences contrary to the dictates of § 2D1.2(a)(1) of the Sen-
tencing Guidelines. Specifically, they argue that§ 2D1.2(a)(1) only
permits a court to consider an enhancement as to those controlled sub-
stances directly involved in a protected location, here within one
thousand feet of a playground or public housing project. Accordingly,
because the district court calculated the defendants' sentences under
§ 2D1.2(a)(1) based on the total amount of narcotics transacted dur-
_________________________________________________________________
1 Our holding as to U.S.S.G. § 2D1.2(a) infra does not affect the harm-
lessness of the district court's errror in light of the district court's obliga-
tion, under § 2D1.2(a), to "apply the greatest" sentence to defendants.
11
ing the conspiracy, and not only those transacted near a playground
or in public housing, the sentencing calculations were in error.
Section 2D1.2, entitled "Drug Offenses Occurring Near Protected
Locations or Involving Underage or Pregnant Individuals; Attempt or
Conspiracy," provides:
(a) Base Offense Level (Apply the greatest):
(1) 2 plus the offense level from § 2D1.1 applica-
ble to the quantity of controlled substances directly
involving a protected location . . .; or
(2) 1 plus the offense level from § 2D1.1 applica-
ble to the total quantity of controlled substances
involved in the offense . . .
U.S.S.G. § 2D1.2 (emphasis added). Thus, the Guidelines require a
sentencing court to determine what portion of the total amount of con-
trolled substances were directly involved in a "protected location."
Importantly, the Sentencing Commission's Application Note 1 fur-
ther highlights the district court's task. It provides:
Where only part of the relevant offense conduct directly
involved a protected location . . . subsections (a)(1) and
(a)(2) may result in different offense levels . For example, if
the defendant, as part of the same course of conduct or com-
mon scheme or plan, sold 5 grams of heroin near a protected
location and 10 grams of heroin elsewhere, the offense level
from subsection (a)(1) would be level 16 (2 plus the offense
level for the sale of 5 grams of heroin, the amount sold near
the protected location); the offense level from subsection
(a)(2) would be level 17 (1 plus the level for the sale of 15
grams of heroin, the total amount of heroin involved in the
offense).
U.S.S.G. § 2D1.2, comment. (n.1) (emphasis added). See also United
States v. Walker, 993 F.2d 196, 198 (9th Cir. 1993) ("[T]he distinc-
tion drawn by the Guidelines is between drugs actually sold or pos-
sessed near the location and those drugs that are part of the same
course of conduct but are sold or possessed outside the protected area.
. . . [T]he drugs [must be] present within 1,000 feet of the school.").
12
Although the district court applied the two level enhancement
under § 2D1.2(a)(1), it failed to make any findings that all of the nar-
cotics attributable to Sampson and Dean were distributed within a
protected area. Had the evidence before the sentencing court suffi-
ciently demonstrated that all of the narcotics in question were distrib-
uted from a protected area, the district court's failure to make such
findings would be inconsequential. See, e.g., United States v.
Washington, 48 F.3d 73, 81 (2d Cir. 1995) (upholding attribution of
all narcotics of conspiracy under § 2D1.2(a)(1) because the defendant
did not "dispute that he lived within 1,000 feet of a school at all rele-
vant times, and the evidence shows that all the sales attributed to
[defendant] occurred at his place of residence " (emphasis added)).
However, the contrary is true here.
The testimony at trial, as well as defendants' presentencing reports,
reveal that in addition to the sales from Hopper's home, which was
located within one thousand feet of a playground, the defendants dis-
tributed significant amounts of narcotics in three locations -- South-
side Homes, Boulevard Homes, and Little Rock Apartments. Yet the
defendants and the government stipulated at trial that only Hopper's
home and the Southside and Boulevard Homes were protected areas.
Accordingly, because we do not know whether the Little Rock Apart-
ments is a protected area within the meaning of§ 2D1.2(a), or
whether the quantities attributable to the defendants included amounts
distributed at the Little Rock Apartments, we cannot determine
whether the district court correctly applied the two-point enhancement.2
_________________________________________________________________
2 The government erroneously relies on the jury's special verdict to
support the district court's two point enhancement under § 2D1.2(a)(1).
The jury in its special verdict specifically found that "a purpose" of the
conspiracy was to distribute cocaine or cocaine base"within 1,000 feet
of a playground or housing facility owned by a public authority."
Accordingly, the government argues that, based on the jury's special ver-
dict, the district court did not clearly err in treating all of the narcotics
involved in the conspiracy as sold within the protected areas. We are
unpersuaded. First, simply because the conspiracy had a "purpose" to
distribute narcotics in a protected area does not mean that all narcotics
attributable to defendants necessarily were distributed in that area.
Indeed, the government itself admitted at sentencing that the conspiracy
"was a bifurcated conspiracy . . . to violate 21 U.S.C. 841 with regard
to crack, and it was a conspiracy to do that within 1,000 feet of a school
13
We therefore vacate and remand Dean's sentence to give the dis-
trict court the opportunity to address the status of the Little Rock
Apartments. On remand, the district court must calculate Dean's sen-
tence under § 2D1.2(a)(1) and § 2D2.2(a)(2) and impose the greater
sentence. In determining the sentence under subsection (a)(1), the
court must address whether the Little Rock Apartments are in fact a
protected area, or if not, make proper findings regarding the amount
of narcotics dealt in the clearly established protected areas -- Hop-
per's home and the Southside and Boulevard Homes. When the court
has calculated Dean's sentence under both subsections, it must then
sentence Dean, employing the higher of the offense levels calculated.
U.S.S.G. § 2D1.2(a).
We need not remand Sampson's case for resentencing because the
greatest possible benefit he could receive from a resentence (if, for
example, he was resentenced under § 2D1.2(a)(2), instead of (a)(1)),
would simply reduce his total offense level by one point. In that case,
Sampson's offense level would be reduced to 44 from 45, rendering
his life sentence unaffected under Chapter 5, Part A of the Sentencing
Guidelines.
C.
Finally, Sampson and Dean argue that the district court erred in
imposing a three-level enhancement for their managerial roles in the
offense under § 3B1.1 of the Sentencing Guidelines. That section pro-
vides:
_________________________________________________________________
or a playground." The indictment even alleges that defendants conspired
not only to distribute drugs within a protected area, but also to conspired
to distribute controlled substances generally in violation of 18 U.S.C.
§ 841(a)(1). Moreover, evidence at trial demonstrated that defendants
sold drugs both in areas known to the jury as protected -- e.g., Southside
and Boulevard Homes -- as well as areas which the government did not
affirmatively prove at trial were protected, namely the Little Rock Apart-
ments. Thus, we cannot infer, based on the jury's special verdict alone,
that all narcotics attributable to defendants were in fact distributed only
in protected areas.
14
Based on the defendant's role in the offense, increase the
offense level . . .
(b) if the defendant was a manager or supervisor
(but not an organizer or leader) and the criminal
activity involved five or more participants or was
otherwise extensive, increase by 3 levels.
U.S.S.G. § 3B1.1. The defendants claim that the government pro-
duced insufficient evidence to support enhancement of their sentences
under § 3B1.1(b). They are mistaken. Numerous trial witnesses estab-
lished evidence sufficient to justify the enhancement.
With regard to Sampson, Hopper testified that he sold for Sampson
and that Tony Moore "cooked" Sampson's crack. Eddie Little con-
firmed that Moore cooked crack for Sampson. In addition, Massey
testified that Mr. James, J.C. Jeeter, Georgia Jeeter, Joanne Davis,
Shirley Ann and May Moore worked for Sampson, and that an indi-
vidual named "Doll" as well as Joanne Davis allowed Sampson to use
their homes for crack distribution. As to Dean, Massey, who was inti-
mately involved in the conspiracy with Dean and Sampson, testified
that seven persons -- Mr. James, J.C. Jeeter, Georgia Jeeter, Joanne
Davis, May Moore and "two [individuals] in the `Windsong Trail'"
[a drug spot] -- worked for Dean distributing his crack. Sabrina Mas-
sey also recounted, and Massey confirmed, that she cut an ounce of
crack for Dean on one occasion under Dean's instructions. Another
cohort, Mumtaz, testified that he worked for Dean selling crack and
knew of other addicts that worked for Dean. Accordingly, the district
court did not err in enhancing Sampson's and Dean's sentences to
reflect their managerial roles. See United States v. Falesbork, 5 F.3d
715, 722 (4th Cir. 1993).
IV.
For the foregoing reasons, we affirm the defendants' convictions
and Sampson's sentence; however, we vacate Dean's sentence and
remand for resentencing in accordance with this opinion.
AFFIRMED IN PART AND VACATED
AND REMANDED IN PART
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