United States v. Rowland ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5261
JESSE ROWLAND, JR.,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5281
PATRINA ANN PARKER,
Defendant-Appellant.
Appeals from the United States District Court
for the Middle District of North Carolina, at Durham.
William L. Osteen, Sr., District Judge.
(CR-94-251)
Submitted: March 26, 1996
Decided: April 22, 1996
Before WIDENER, HALL, and HAMILTON, Circuit Judges.
_________________________________________________________________
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
_________________________________________________________________
COUNSEL
Ronald Schwartz, Cincinnati, Ohio; Walter T. Johnson, Jr., Greens-
boro, North Carolina, for Appellants. Walter C. Holton, Jr., United
States Attorney, David B. Smith, Assistant United States Attorney,
Timika Shafeek, 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Unpublished opinions are not binding precedent in this circuit.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:
Jesse Rowland, Jr., and Patrina Ann Parker both pled guilty to con-
spiring, from the summer of 1991 to October 1994, to possess more
than 50 grams of crack cocaine with intent to distribute, 21 U.S.C.A.
§ 846 (West Supp. 1996). Rowland was sentenced to a term of 210
months imprisonment. Parker received a sentence of 235 months
imprisonment. Both challenge their sentences on appeal. We affirm
Parker's sentence and affirm Rowland's sentence in part. However,
we vacate Rowland's sentence in part and remand for resentencing
because the district court clearly erred in determining that he was a
manager in the offense.
The district court found that Rowland and Parker were nearly equal
participants in the conspiracy, but that Rowland managed their assets
and property. The court gave Rowland a 2-level adjustment for being
a manager in the offense. However, under the applicable guideline, a
defendant must have managed or supervised another participant to
qualify for the adjustment. United States Sentencing Commission,
Guidelines Manual § 3B1.1(b), comment, (n.2) Nov. 1994). The gov-
ernment concedes error and requests resentencing on this issue.
Because the commentary authorizes an upward departure, where
appropriate, for a defendant who "exercised management responsibil-
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ity over the property, assets, or activities of a criminal organization,"
on remand the district court is free to consider whether a departure is
warranted.
Next, Rowland challenges the district court's determination of the
amount of drugs for which he was accountable. We review the district
court's findings of fact concerning the relevant quantity of drugs for
clear error. United States v. Fletcher, 74 F.3d 49, 55 (4th Cir. 1996).
First, he contends that the court erred by converting powder cocaine
he distributed to its crack equivalent and, second, by converting
$70,000 in cash seized from his home in December 1990 to its
cocaine powder equivalent. Our review of the record discloses that,
for both defendants, the district court decided against converting pow-
der cocaine amounts to crack as urged by the government; Rowland's
first argument is thus without basis.
Rowland's second argument is without merit. While the indictment
charged a conspiracy beginning in the summer of 1991, drug amounts
outside the count of conviction may be considered in determining the
offense level if they are part of the same course of conduct or com-
mon scheme or plan as the count of conviction. USSG§ 1B1.3(a)(2).
Conversion of money derived from drug trafficking to its equivalent
drug amount is also permissible. USSG § 2D1.1, comment. (n.12);
United States v. Hicks, 948 F.2d 877, 882-83 (4th Cir. 1991).
Rowland contends that there was no evidence to connect the money
to drug trafficking, but the record reveals otherwise. His home was
searched under a warrant after police received a tip that he was bring-
ing several kilograms of cocaine from New York. Traces of cocaine
were found in the box where $20,000 of the money was hidden and
on pantyhose wrapped around a semi-automatic pistol found under a
dresser with $18,000. A small amount of crack was also seized. Of
the $70,000 in cash found in Rowland's home, $47,500 was forfeited
to the United States in a civil proceeding; another $22,900 was
returned to Rowland because it was not shown to be connected to
drug trafficking. The district court considered only the $47,500 which
Rowland forfeited. We cannot say that the district court clearly erred
in finding that this money was derived from cocaine trafficking that
was part of the same course of conduct as the conspiracy to which he
pled guilty.
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Rowland's last argument is that the penalties for crack cocaine
offenses are unconstitutionally vague and should not have been
applied. We considered and rejected his argument in United States v.
Fisher, 58 F.3d 96, 99 (4th Cir.), cert. denied, ___ U.S. ___, 64
U.S.L.W. 3270 (U.S. Oct. 10, 1995) (No. 95-5923).
Parker objected at sentencing to the inclusion of certain amounts
of crack and powder cocaine in her sentence calculation based on the
testimony of two witnesses, Celestine Stamper and Antoine Smith.
Both Stamper and Smith testified at length at the Fed. R. Crim. P. 11
hearing where Rowland and Parker entered their guilty pleas. Stamper
testified that she bought cocaine and crack from Rowland and Parker
about fifteen times between 1991 and 1993, and she described in
detail several transactions involving Parker. Stamper also recorded a
negotiation with Rowland and Parker for a purchase of cocaine and
crack in the fall of 1993, while she was cooperating with the govern-
ment. Parker sought to convince the district court at sentencing that
the events related by Stamper and Smith could not have happened
because she was in jail, in the hospital, or ill during all the relevant
time periods. Parker was on intensive supervision probation from
June 1988 to December 1991. She was ill (during a pregnancy which
ended with an abortion) and living with relatives from April 1991 to
October 1991. She was in jail from December 17, 1991, to March 23,
1992, and on house arrest from March 23, 1992, to November 2,
1992, when she was pregnant with Rowland's child. She was again
in jail from November 19, 1992, to February 9, 1993. However,
between December 1990 and May 1992, Parker incurred convictions
for trespassing, speeding, reckless driving, misdemeanor assault on a
law officer, felony assault on a law officer, and operating a vehicle
without insurance.
The evidence showed and the district court found that Parker was
at liberty during the times Stamper testified that she dealt with Parker,
with the exception of one transaction which Stamper said happened
in December 1992, while Parker was in jail. The district court found
that Stamper's testimony was credible even though she was mistaken
about one date.
Similarly, Smith testified that he bought approximately 9.5 ounces
of crack from Rowland between January and March of 1991, and that
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Parker was usually with Rowland when these transactions occurred.
Parker was on probation during that time, but was not in prison or
physically indisposed, and it was those transactions that the district
court used in calculating her offense level. The court held Parker
responsible only for those drug transactions which occurred while she
was at liberty. The court's findings concerning Parker's relevant con-
duct were not clearly erroneous.
Last, Parker challenges the enhancement she received for the pos-
session of weapons found in an apartment building owned by Row-
land when it was searched under a warrant in October 1994, alleging
that the search warrant was "unreasonable" and suggesting that drugs
were planted by the police officers in the apartment where firearms
were found. Although Parker initially moved to suppress the evidence
seized in the search, she withdrew the motion at sentencing. The dis-
trict court did not plainly err in considering the presence of the fire-
arms and did not clearly err in making the 2-level enhancement under
USSG § 2D1.1(b)(1).
We therefore affirm the sentence imposed on Parker. We affirm
Rowland's sentence with the exception of the adjustment for a mana-
gerial role in the offense. We vacate his sentence and remand the case
for resentencing without the adjustment. On remand, the district court
may consider whether an upward departure is warranted. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED
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