United States v. Craighead ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4397
FREDERICK EUGENE CRAIGHEAD,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4398
NANNIE SUE CRAIGHEAD,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4419
NANCY SUE WHEELING,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4439
FRANCES ELAINE CRAIGHEAD,
Defendant-Appellant.
Appeals from the United States District Court
for the Western District of Virginia, at Roanoke.
Samuel G. Wilson, Chief District Judge.
(CR-96-76)
Submitted: March 17, 1998
Decided: April 2, 1998
Before WIDENER and MOTZ, Circuit Judges, and BUTZNER,
Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Rhonda L. Overstreet, LUMSDEN & OVERSTREET, Roanoke, Vir-
ginia; Marc James Small, Roanoke, Virginia; Demetrius W. Fannick,
Wilkes-Barre, Pennsylvania; Wayne D. Inge, Roanoke, Virginia, for
Appellants. Robert P. Crouch, Jr., United States Attorney, Joseph W.
H. Mott, Assistant United States Attorney, Matthew Gomes, Third
Year Law Student, Roanoke, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
In 1995 the Drug Enforcement Administration and local law
enforcement agents began investigating illegal drug transactions
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occurring in the Chestnut Hill Trailer Park in Franklin County, Vir-
ginia. The investigation resulted in a fifty-one count superseding
indictment charging Appellants Nannie Sue Craighead ("Nannie
Sue"), Frederick Eugene Craighead ("Frederick"), Frances Elaine
Craighead ("Frances"), Nancy Sue Wheeling, and sixteen other defen-
dants with various conspiracy and associated drug distribution
charges. Appellants each pled guilty to conspiring to possess with
intent to distribute cocaine base in violation of 21 U.S.C. § 846
(1994). Appellants now challenge their sentences. For the reasons set
forth below, we affirm.
I.
Nannie Sue, Frederick, and Frances Craighead contend that the dis-
trict court erred in calculating the amount of cocaine attributable to
them for sentencing purposes. The government has the burden of
proving by a preponderance of the evidence sentencing factors,
including the type and quantity of drugs for which the defendant
should be held accountable. See United States v. Estrada, 42 F.3d
228, 231 (4th Cir. 1994). In proving these factors, the government
may rely upon information found in a defendant's presentence report
unless the defendant affirmatively shows that such information is
inaccurate or unreliable. See United States v. Gilliam, 987 F.2d 1009,
1014 (4th Cir. 1993). Drug quantities attributable to persons con-
victed of conspiracy to distribute illegal drugs are determined by
examining "the quantity of narcotics reasonably foreseeable to each
conspirator within the scope of his agreement." United States v. Irvin,
2 F.3d 72, 78 (4th Cir. 1993); see also U.S. Sentencing Guidelines
Manual § 1B1.3(a)(1)(B) (1996). We review the district court's find-
ings on sentencing factors for clear error. United States v. McDonald,
61 F.3d 248, 255 (4th Cir. 1995).
Nannie Sue Craighead alleges the district court erred in holding her
accountable for 492.2 grams of cocaine. Her presentence report indi-
cated that codefendant Cassandra Craighead informed the government
that Nannie Sue was selling at least a quarter-ounce of cocaine per
week from the middle of 1995 until her arrest in September 1996. The
district court credited this evidence, noting that four other witnesses
made corroborative statements indicating that Nannie Sue was selling
drugs on a routine basis. In addition, the district court recognized that
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the presentence report did not factor into the 492.2 gram figure the
$4600 in currency found in Nannie Sue's purse at the time of her
arrest. See generally United States v. Uwaeme , 975 F.2d 1016, 1019
(4th Cir. 1992) (noting that district court can use large sums of money
seized from defendant to determine amount of drugs at sentencing).
On appeal, Nannie Sue contends that the 492.2 gram figure is an
estimate and that the government produced no direct evidence in sup-
port of this amount. However, in cases like this where the government
is unable to establish the amount of drugs involved with specificity,
a district court may approximate the quantity to be used for sentenc-
ing, and hearsay alone can provide sufficiently reliable evidence of
quantity. See id. Accordingly, we find that the evidence before the
district court was sufficient to hold Nannie Sue accountable for 492.2
grams of cocaine.
Frederick Craighead alleges that the district court erroneously held
him accountable for 940.769 grams of cocaine base. First, he claims
that the methodology used to derive this amount of cocaine was
imprecise, and thus the government failed to meet its burden of prov-
ing he should be held accountable for this amount. Second, he alleges
that the 940 gram amount is inflated because the district court failed
to credit his testimony that he sold both powder and crack cocaine and
therefore erroneously attributed drug weight in cocaine base rather
than powder cocaine.
Frederick's own testimony is the sole evidence he introduced chal-
lenging the probation officer's recommendation to hold him account-
able for 940 grams of cocaine. The district court, however, clearly
credited the probation officer's testimony as to both the quantity and
type of cocaine. We find that the presentence report and the probation
officer's testimony provided ample evidence to support the district
court's decision to attribute 940 grams of cocaine to Frederick for
sentencing purposes.
The district court held Frances Craighead accountable for over 150
grams of cocaine based on the evidence presented at sentencing, par-
ticularly Frances' admissions as to the amounts of cocaine she dealt
as explained by the probation officer. At sentencing, a probation offi-
cer familiar with the circumstances surrounding the preparation of
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Frances' presentence report testified that 485.58 grams of cocaine
were attributed to Frances based upon: (1) ten transactions as shown
in the indictment from December 15 and March 21, 1996, totaling
75.44 grams; (2) information from coconspirator Tim Holland that in
the summer of 1996 he sold Frances between a half ounce and an
ounce of cocaine per week; (3) coconspirator Cassandra Craighead's
statement that between March 1996 and the summer of 1996 she and
Frances traveled together and purchased two ounces of cocaine on
two separate occasions; (4) information that John Wilson purchased
14.1 grams of cocaine for Frances; (5) coconspirator Tim Muse's
statement that he purchased five grams of cocaine from Frances; and
(6) Frances' admission that she sold an additional 107.54 grams of
crack. On cross examination, the probation officer stated that Frances'
admissions alone provided sufficient evidence to attribute to her 152
grams of cocaine.
On appeal, Frances alleges the district court erred by double count-
ing cocaine transactions from the indictment and other transactions
for which she was held accountable. However, ignoring the 75.44
grams of cocaine from the indictment, Frances' admissions, and those
transactions in which Frances sold cocaine, her purchases alone
exceeded 150 grams. Adding the four ounces of cocaine Frances pur-
chased with Cassandra Craighead (113.4 grams), the half ounce of
cocaine she bought each week from Holland in the summer of 1996
(170.1 grams),1 and the 14.1 grams John Wilson bought for her, this
amounts to 297.6 grams of cocaine. In light of this evidence, we find
that district court did not clearly err in determining the amount of
drugs attributable to Frances.
II.
Frances Craighead next alleges that the district court failed to make
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1 Frances offered no evidence demonstrating that Holland was incarcer-
ated during the period of these contested drug transactions, and thus
failed to meet her burden of establishing that the presentence report inac-
curately attributed her with purchasing cocaine from Holland during the
summer of 1996. See United States v. Terry, 916 F.2d 157, 162 (4th Cir.
1990).
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factual findings in accordance with Fed. R. Crim. P. 32(c)(1). Rule
32(c)(1) states in pertinent part:
At the sentencing hearing, the court must afford counsel for
the defendant and for the Government an opportunity to
comment on the probation officer's determinations and on
other matters relating to the appropriate sentence, and must
rule on any unresolved objections to the presentence report.
The court may, in its discretion, permit the parties to intro-
duce testimony or other evidence on the objections. For each
matter controverted, the court must make either a finding on
the allegation or a determination that no finding is necessary
because the controverted matter will not be taken into
account in, or will not affect, sentencing. A written record
of these findings and determinations must be appended to
any copy of the presentence report made available to the
Bureau of Prisons.
The purpose of this rule is to ensure that a record is made as to how
the district court ruled on any alleged inaccuracy in the presentence
report, thereby facilitating effective appellate review of the sentence
imposed. United States v. Walker, 29 F.3d 908, 911 (4th Cir. 1994).
"To comply with rule 32, a sentencing court need not articulate a find-
ing as to disputed allegations with minute specificity." United States
v. Perrera, 842 F.2d 73, 76 (4th Cir. 1988).
Frances argued at sentencing that alleged double counting and
unreliable evidence erroneously attributed her with over 150 grams of
cocaine. We find that the district court complied with Rule 32 by
making an express finding that the government proved by a prepon-
derance of the evidence that Frances was involved with over 150
grams of cocaine.
III.
Nannie Sue Craighead alleges that the district court erred in refus-
ing to reduce her base offense level pursuant to U.S.S.G. § 3B1.2,
which allows a reduction for a "minor" participant in the conspiracy.
Because this determination is essentially a factual question, this Court
reviews it for clear error. See 18 U.S.C.A.§ 3742(e) (West 1985 &
6
Supp. 1997); United States v. Gordon, 895 F.2d 932, 934 (4th Cir.
1990). Section 3B1.2 directs sentencing courts to reduce defendant's
base offense by two levels if she was a "minor" participant in the
criminal activity. The burden is on the defendant to prove by a pre-
ponderance of the evidence that she is entitled to a reduction based
on her role in the offense. See id. at 935.
We find that Nannie Sue failed to meet this burden."A finding is
`clearly erroneous' when although there is evidence to support it, the
reviewing court on the entire evidence is left with the definite and
firm conviction that a mistake has been committed." United States v.
United States Gypsum Co., 333 U.S. 364, 395 (1948). Nannie Sue
asserts that she was entitled to the reduction because she was not a
major organizer or supplier in the conspiracy, dealt only small quanti-
ties, and was only involved in the conspiracy for a short period of
time. The evidence at sentencing, however, was that Nannie Sue
actively participated in possessing and distributing quarter-ounce
quantities of cocaine on a routine basis. Evidence of her drug dealing
activities was also corroborated by the $4600 in currency found in her
trailer at the time of her arrest.
Although Nannie Sue testified at sentencing that she was unaware
of much of the cocaine distribution that was occurring in the Chestnut
Hill Trailer Park, she fails to substantiate her claim that she was less
culpable than the other members of the conspiracy. While she may be
correct in asserting that she was not a major organizer and supplier
within the conspiracy, her activity was not necessarily minimal. See
United States v. Calderon, 127 F.3d 1314, 1342 (11th Cir. 1997);
United States v. Garcia, 920 F.2d 153, 155-56 (2d Cir. 1990) (depar-
ture denied where defendant was entrusted with and delivered large
amount of cocaine). Further, this Court gives substantial deference to
a district court's credibility judgments. See Uwaeme, 975 F.2d at
1018. Here, the district court heard evidence of Nannie Sue's drug
activities and determined that she failed to show by a preponderance
of the evidence that she was entitled to a downward adjustment of her
sentence for minor participation. Based on this record, we are not left
with the definite and firm conviction that the district court clearly
erred in denying the downward adjustment.
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IV.
Nannie Sue Craighead next claims that the district court erred in
finding that her age and physical infirmities did not justify a down-
ward departure under U.S.S.G. § 5H1.4.2 A review of the record
reveals that the district court understood its discretionary authority to
depart under § 5H1.4 in circumstances of extraordinary physical
impairment, but found that Nannie Sue's physical impairments did
not rise to the level necessary to warrant such a departure. Accord-
ingly, the issue is not reviewable on appeal. See United States v. Hall,
977 F.2d 861, 866 (4th Cir. 1992).
V.
Wheeling's sole argument on appeal is that the district court added
two points to her criminal history category based on its erroneous
interpretation of U.S.S.G. § 4A1.1(d). Section 4A1.1(d) instructs a
district court to, "[a]dd 2 points if the defendant committed the instant
offense while under any criminal justice sentence, including proba-
tion, parole, supervised release, imprisonment, work release, or
escape status." U.S.S.G. § 4A1.1(d). This Court reviews questions
involving the legal interpretations of the Guidelines de novo. United
States v. Wessells, 936 F.2d 165, 168 (4th Cir. 1991).
In 1992 Wheeling was convicted and sentenced for drug related
offenses in Virginia state court. In 1994 her appeal of that conviction
was denied, yet for reasons unclear from the record she remained free
on appeal bond. On September 5, 1996, following her arrest in this
case, a Virginia court ordered that Wheeling be remanded to custody
for her 1992 state convictions. Wheeling now contends that because
her state sentences were not executed when the instant offense
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2 Section 5H1.4 states in relevant part: "Physical condition or appear-
ance, including physique, is not ordinarily relevant in determining
whether a sentence should be outside the applicable guideline range.
However, an extraordinary physical impairment may be a reason to
impose a sentence below the applicable guideline range; e.g., in the case
of a seriously infirm defendant, home detention may be as efficient as,
and less costly, than imprisonment."
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occurred, she was not "under a criminal justice sentence" within the
meaning of § 4A1.1(d).
If a defendant commits another crime after being sentenced but
before serving that sentence, that defendant has committed the second
crime while under a criminal justice sentence for§ 4A1.1(d) pur-
poses. See United States v. Damon, 127 F.3d 139, 147 (1st Cir. 1997)
(holding defendant was under sentence when he committed the instant
offense during one month stay of previously imposed sentence);
United States v. Martinez, 931 F.2d 851, 852-53 (11th Cir. 1991)
(sentenced but not surrendered for service). Even a defendant who has
not been formally sentenced for a prior conviction can be "under sen-
tence" within the meaning of § 4A1.1(d). See United States v.
Norman, 129 F.3d 1393, 1401-02 (10th Cir. 1997) (finding so long
as probation-like requirements are imposed during period of sentence
deferment defendant is under sentence). Here, Wheeling had already
been sentenced for her prior conviction at the time she committed the
instant offense. Therefore, we find that the district court did not err
in finding that she was under sentence and properly increased her
criminal history category by two points under § 4A1.1(d).
Accordingly, we affirm Appellants' sentences. We dispense with
oral argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.
AFFIRMED
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