United States v. Sawyers ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 96-4438
DONALD WADE SAWYERS, a/k/a
Buckwheat,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of North Carolina, at Winston-Salem.
William L. Osteen, Sr., District Judge.
(CR-95-270)
Submitted: December 19, 1996
Decided: January 10, 1997
Before ERVIN and MOTZ, Circuit Judges, and BUTZNER,
Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Danny T. Ferguson, Winston-Salem, North Carolina, for Appellant.
Walter C. Holton, Jr., United States Attorney, Clifton T. Barrett,
Assistant United States Attorney, Greensboro, North Carolina, for
Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Donald Wade Sawyers was convicted by a jury of conspiracy to
possess crack cocaine with intent to distribute, 21 U.S.C. § 846(1994). He appeals his conviction on the ground of insufficient evi-
dence. Sawyers also appeals his 235-month sentence, contending that
the district court clearly erred in determining the amount of crack for
which he was responsible, USSG § 2D1.1,1 and in enhancing his sen-
tence for obstruction of justice on a finding that he perjured himself
at trial, USSG § 3C1.1. We affirm the conviction and sentence.
Between 1989 and the fall of 1995, Timothy Ray Smith and his
associates made regular trips from Mt. Airy, North Carolina, to New
York to buy cocaine powder. The cocaine was cooked into crack in
Mt. Airy and distributed. Numerous witnesses who were involved in
the conspiracy testified at Sawyers' trial. Several had seen Sawyers
receive one-ounce quantities of crack from Smith or pay Smith for
ounces Sawyers had previously received. Others bought crack or
cocaine powder from Sawyers. A state undercover officer testified
that he bought 1.2 grams of crack and .7 grams of cocaine powder
from Sawyers in 1992; Sawyers was convicted of this offense in state
court and received a suspended sentence.
When federal agents arrested Sawyers in November 1995, the
agents found about $21,000 in cash in a Chevrolet parked behind his
house. Sawyers consented to the search and provided the key to the
car. At trial, the defendant's brother, Jerry Sawyers, testified that the
money was a pension plan disbursement he had received from his
employer. He said he owned the Chevrolet and hid the money in the
car to keep it from his estranged wife. He said he had not obtained
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1 United States Sentencing Commission, Guidelines Manual (Nov.
1995).
2
a title for the car and had not told the defendant the money was in the
car. Sawyers testified in his own behalf that he had used drugs but had
never sold drugs. He denied selling crack and cocaine to the under-
cover agent in 1992 and said he entered a guilty plea to that charge
on his lawyer's advice. He said a friend had asked him to sell the
Chevrolet for her and that he did not know his brother had bought the
car or that $21,000 was in it.
A conviction must be sustained if there is substantial evidence to
support the verdict when the evidence is viewed in the light most
favorable to the government. Glasser v. United States, 315 U.S. 60,
80 (1942). This case turned primarily on the jury's assessment of the
credibility of the witnesses, a determination which is not reviewable
on appeal. United States v. Saunders, 886 F.2d 56, 60 (4th Cir. 1989).
Sawyers asserts that the government's witnesses were not credible
because all but two of them were hopeful of receiving a sentence
reduction for substantial assistance and that, if the testimony of those
witnesses is discounted, insufficient evidence remains for a convic-
tion. We disagree. Defense counsel explored thoroughly in the pres-
ence of the jury the possible benefit to each witness of his or her
testimony against Sawyers. Two of the witnesses could not be dis-
credited on this ground. Ramona Speaks and James Gwynn testified
that they bought crack and cocaine powder from Sawyers; Speaks had
not been charged, and Gwynn was not in a position to receive a sen-
tence reduction. Moreover, the testimony of the government's wit-
nesses was corroborated by that of the undercover officer. A
reasonable factfinder could conclude that the government's witnesses
were more credible than the defense witnesses and that Sawyers par-
ticipated in the conspiracy.
Sawyers next argues that the district court clearly erred in convert-
ing the $21,000 seized from the car to its crack equivalent for sen-
tencing purposes. He attempts to distinguish United States v. Hicks,
948 F.2d 877, 883 (4th Cir. 1991), which approved a similar conver-
sion of money into its drug equivalent when the amount of drugs
seized did not reflect the scale of the defendant's involvement. In that
case, the defendant admitted that most of the money seized from his
home was drug proceeds. Although Sawyers made no such admission,
the district court found by a preponderance of the evidence that the
money belonged to Sawyers and was drug-related, and the finding is
3
supported by the evidence produced at trial that Sawyers had engaged
in drug trafficking for several years.2 See United States v. Gonzalez-
Sanchez, 953 F.2d 1184, 1187 (9th Cir. 1992) (conversion of money
to drug equivalent only improper without finding of link to drug
transaction).
Finally, Sawyers challenges the district court's finding that he gave
perjured testimony when he denied selling drugs to the undercover
officer, Ramona Speaks, or James Gwynn. He contends that the find-
ing was inadequate under United States v. Dunnigan, 507 U.S. 87(1992). Before making an adjustment for obstruction of justice based
on the defendant's perjury at trial, the district court must make a find-
ing which either addresses each element of perjury or encompasses a
finding that the defendant willfully gave false testimony on a material
matter. Id. at 95. The district court here found that Sawyers was
untruthful in denying that he sold drugs to Speaks, James Gwynn, and
the undercover officer. Sawyers could not have been confused or mis-
taken about the matter, and it was material to the question of his guilt.
Consequently, the district court's finding was adequate under
Dunnigan and was not clearly erroneous.
The conviction and sentence are therefore affirmed. 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
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2 Sawyers' brother again testified at the sentencing hearing that the
money was his. However, he was unable to remember where he had
cashed or deposited the check from his employer initially and could not
explain why most of the money was in two containers each holding about
$10,000 or why he had failed to pay child support despite a court order
to do so.
4