United States v. Beard , 232 F. App'x 368 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4408
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
HOWARD J. BEARD,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg. Samuel G. Wilson, District
Judge. (5:02-cr-30020-sgw-4)
Submitted: May 23, 2007 Decided: July 12, 2007
Before WILLIAMS, Chief Judge, WILKINSON, Circuit Judge, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
B. Stephanie Commander, B. STEPHANIE COMMANDER, P.L.C.,
Charlottesville, Virginia, for Appellant. John L. Brownlee, United
States Attorney, William F. Gould, Assistant United States
Attorney, Roanoke, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Howard J. Beard appeals his sentence imposed for
conspiracy to possess with intent to distribute more than fifty
grams of cocaine base and knowingly distributing a detectable
amount of cocaine base after remand for re-sentencing in light of
United States v. Booker, 543 U.S. 220 (2005). Beard again
challenges the constitutionality of his sentence. He also claims
that the court erred in attributing 500 grams or more of cocaine
base to him, enhancing his sentence for a leadership role of
manager or supervisor, failing to grant him a reduction for minor
role in the offense, and failing to sua sponte apply the safety
valve provision. Finding no error, we affirm.
On appeal after remand, Beard again argues that his
sentence was enhanced in violation of the Sixth Amendment because
the court relied on factors not admitted by him or submitted to a
jury and proven beyond a reasonable doubt. In Booker, the Supreme
Court held that Blakely v. Washington, 542 U.S. 296 (2004), applies
to the federal Sentencing Guidelines and that the mandatory
Guidelines scheme, which provided for sentence enhancements based
on facts found by the court by a preponderance of the evidence,
violated the Sixth Amendment. See Booker, 543 U.S. at 226-27, 245.
The Court remedied the constitutional violation by severing and
excising the statutory provisions that mandate sentencing and
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appellate review under the Guidelines, thus making the Guidelines
advisory. 543 U.S. at 245.
However, in imposing a sentence post-Booker, courts still
must calculate the applicable Guidelines range after making the
appropriate findings of fact and consider the range in conjunction
with other relevant factors under the Guidelines and 18 U.S.C.A.
§ 3553(a) (West Supp. 2006). United States v. Moreland, 437 F.3d
424, 432 (4th Cir.), cert. denied, 126 S. Ct. 2054 (2006). Here,
the district court re-sentenced Beard post-Booker and appropriately
treated the Guidelines as advisory. The sentencing court properly
made factual findings concerning sentencing factors by a
preponderance of the evidence, including drug quantity and a
leadership enhancement. See United States v. Morris, 429 F.3d 65,
72 (4th Cir. 2005), cert. denied, 127 S. Ct. 121 (2006). The Court
sentenced Beard after considering and examining the Sentencing
Guidelines and the § 3553(a) factors, as instructed by Booker.
Therefore, there is no Sixth Amendment error.
Next, Beard argues that the district court’s decision on
drug quantity was based on unreliable evidence in that it relied on
the testimony of cooperating informants. He also argues that the
district court did not make specific findings as to whether the
drug amount was reasonably foreseeable and within the specific
agreement of the conspiracy and instead “blindly” held him
accountable for 500 grams of cocaine base.
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First, this court does not review the district court’s
credibility findings regarding witness testimony. Witness
credibility is not generally subject to appellate review. United
States v. Saunders, 886 F.2d 56, 60 (4th Cir. 1989). Moreover, the
witnesses in a drug conspiracy case are frequently other drug users
and dealers; this fact alone is insufficient to discount their
testimony. See, e.g., United States v. Rose, 12 F.3d 1414, 1425
(7th Cir. 1994) (noting that in criminal cases, one “‘cannot expect
that witnesses will possess the credibility of people of the
cloth’”) (quoting United States v. Rovetuso, 768 F.2d 809, 818 (7th
Cir. 1985)).
A sentencing court may hold a drug conspirator
responsible for all of the drugs that were reasonably foreseeable
to him within the scope of the unlawful agreement. United
States v. Lipford, 203 F.3d 259, 270 (4th Cir. 2000). To justify
a finding based on co-conspirator liability, the sentencing court
must make specific findings as to the scope of the conspiratorial
agreement and the foreseeability of the co-conspirator’s conduct.
United States v. Bolden, 325 F.3d 471, 499-500 (4th Cir. 2003).
Although the district court did not specifically state which
amounts it was crediting and whether they were reasonably
foreseeable to Beard and within the scope of the agreement, we
conclude that it was not clear error to attribute 500 grams of
cocaine base to him. The information in the presentence report and
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testimony at trial indicate that this amount was attributable to
Beard alone, without relying on the drugs distributed by Buchanan
or others. After reviewing the full record, we find that the
district court did not clearly err in attributing 500 grams or more
of cocaine base to Beard.
A district court’s determination of the defendant’s role
in the offense is reviewed for clear error. United States v.
Sayles, 296 F.3d 219, 224 (4th Cir. 2002). A three-level
adjustment for role in the offense is appropriate when “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.” U.S. Sentencing
Guidelines Manual § 3B1.1(b) (2002). An enhancement for an
aggravating role requires, at a minimum, that “the defendant must
have been the organizer, leader, manager, or supervisor of one or
more other participants.” USSG § 3B1.1, comment. (n.2); United
States v. Harriott, 976 F.2d 198, 200 (4th Cir. 1992) (two-level
enhancement appropriate where defendant directed activities of one
other person); United States v. Kincaid, 964 F.2d 325, 329 (4th
Cir. 1992) (same).
Beard argues that he was just a street level dealer, did
not have control over the actions of others, recruit other members
into the conspiracy, or plan or organize any conspiracy activities.
Beard managed or supervised at least five co-conspirators. In
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addition, Beard directed others to put their names on his cell
phone account and automobile title, and to cash checks for him. We
therefore conclude that the activities in which Beard engaged meet
the requirements of a manager or supervisor of a conspiracy under
USSG § 3B1.1(b). See United States v. Bartley, 230 F.3d 667,
673-74 (4th Cir. 2000) (holding increase appropriate where
defendant arranged the logistics of marijuana deliveries or
payments and coordinated the activities of others). The district
court did not err in increasing Beard’s Guidelines range based upon
his managerial role in the conspiracy.
Beard also essentially questions whether the district
court erred in not applying a reduction in his base offense level
for having a minor role in the offense. Beard objected to the PSR
on the basis of failure to award the reduction, however the
objection was not renewed at sentencing. A defendant who is only
a “minor participant” in a criminal activity may have his offense
level reduced by two levels. USSG § 3B1.2(b). This applies to a
defendant “who is less culpable than most other participants, but
whose role could not be described as minimal.” USSG § 3B1.2(b),
comment. (n.5). Here, the district court reasonably did not grant
a two-level reduction for minor participant in the offense, as the
evidence established that Beard was a manager or supervisor, and
his significant managerial activities demonstrate that his role
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cannot be defined as minimal. Therefore, under either a plain
error or clear error standard, the court did not err.
Finally, Beard argues that the court should have sua
sponte applied the safety valve adjustment. Under the safety valve
provision, a defendant who provides timely and truthful information
about his offenses to the Government may be sentenced without
regard to a statutory mandatory minimum, if he meets all five
requirements set forth in the statute.* See 18 U.S.C. § 3553(f)
(2000); USSG § 5C1.2; United States v. Beltran-Ortiz, 91 F.3d 665,
667 (4th Cir. 1996). The record reveals that the district court
did not plainly err in failing to apply the provision to benefit
Beard.
We therefore affirm Beard’s sentence. 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
*
The statute applies only if the defendant: (1) does not have
more than one criminal history point; (2) has not used violence or
credible threats of violence, or possessed a dangerous weapon in
connection with the offense; (3) has not caused death or serious
bodily injury; (4) was not an organizer, leader, manager, or
supervisor of others in the offense; and (5) not later than the
time of the sentencing hearing, the defendant has truthfully
provided to the Government all information and evidence concerning
offenses part of the same course of conduct or a common scheme or
plan. 18 U.S.C.A. § 3553(f) (West 2000 & Supp. 2006); USSG § 5C1.2
(2002).
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