United States v. Anthony Miller ( 2000 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4268
ANTHONY GLENN MILLER, a/k/a T,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
William L. Osteen, District Judge.
(CR-98-139)
Submitted: January 31, 2000
Decided: February 23, 2000
Before WIDENER, WILKINS, and WILLIAMS, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
Brian M. Aus, Durham, North Carolina, for Appellant. Walter C. Hol-
ton, Jr., United States Attorney, Michael F. Joseph, Assistant United
States Attorney, Greensboro, North Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Anthony Glenn Miller appeals from sentences totaling 352 months
following his guilty plea to conspiracy to possess with the intent to
distribute and to distribute cocaine and crack cocaine, 21 U.S.C.
§ 846 (1994), attempting to possess with the intent to distribute
cocaine, 21 U.S.C. § 841(a) (1994), and carrying a firearm during and
in relation to a drug trafficking crime, 18 U.S.C.A.§ 924(c) (West
Supp. 1999). Miller claims on appeal that the district court erred in
enhancing his base offense level by four levels pursuant to U.S. Sen-
tencing Guidelines Manual § 3B1.1(a) (1998) based on a finding that
he was an organizer or leader of a criminal activity that involved five
or more persons or was "otherwise extensive." Finding no reversible
error, we affirm.
In determining whether an enhancement under USSG§ 3B1.1(a) is
appropriate, the court should consider: (1) whether the defendant
exercised decision making authority; (2) the nature of his participa-
tion in the commission of the offense; (3) whether he recruited
accomplices; (4) whether he had a claimed right to a greater share of
the proceeds of the crime; (5) the degree of his planning or organizing
the offense; (6) the nature and scope of the conspiracy; and (7) the
degree to which he exercised control over others. See USSG § 3B1.1,
comment. (n.4). Even in cases in which the defendant did not orga-
nize or manage one or more of the participants, an upward departure
may be warranted where he has "exercised management responsibility
over the property, assets, or activities of a criminal organization."
USSG § 3B1.1, comment. (n.2). An enhancement under the guide-
lines must be supported by a preponderance of the evidence. See
United States v. Urrego-Linares, 879 F.2d 1234, 1238-39 (4th Cir.
1989). This court grants substantial deference to the district court's
factual findings that a defendant was a leader or organizer of a con-
spiracy involving five or more persons and reverses only if the district
court's decision was clearly erroneous. See United States v. Smith,
914 F.2d 565, 569 (4th Cir. 1990).
A review of the record discloses that the district court did not
clearly err in finding that Miller's testimony supported enhancing his
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sentence under USSG § 3B1.1(a). Miller pled guilty to an indictment
charging conspiracy with Wayne Clarke, Cole Coleman, and Carolyn
McCorkle, and other unnamed persons to possess with the intent to
distribute and to distribute cocaine and crack cocaine. At his sentenc-
ing hearing, Miller denied the involvement of the named co-
conspirators. However, he admitted that: (1) he began selling cocaine
in 1995; (2) after a year's time, he was selling a half kilogram worth
of cocaine every week to two weeks; (3) he sold to Timothy Mack for
six months during 1996; (4) he maintained several stash houses from
where he sold crack cocaine; (5) for almost a year until his arrest in
1998 he worked with Wayne Clarke, and during that time that they
sold a kilogram of cocaine every two to four weeks; (6) he and Clarke
purchased cocaine together and cooked it into crack cocaine; (7)
Clarke lived in one of Miller's stash houses that was a distribution
point for crack cocaine; (8) during 1996 and 1997, Miller purchased
approximately ten kilograms of cocaine from Jeffrey Taylor in New
York; (9) during this same time, he purchased ten to fifteen kilograms
of cocaine from Andre Jackson in New York; and (10) the cocaine
was often transported from New York to North Carolina by Clarke.
Thus, the record supported the district court's findings. See USSG
§ 3B1.1, comment. (n.2&4); see generally United States v. Banks, 10
F.3d 1044, 1057 (4th Cir. 1993) (enhancements for a defendant's
leadership role in a conspiracy under USSG § 3B1.1(a) have been
applied where a defendant was "a major supplier of both drugs for
distribution and re-distribution by other members of the conspiracy,"
and thus had a central role in the conspiracy).
Accordingly, we affirm Miller's convictions and sentences. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
AFFIRMED
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