United States v. Washington ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 97-4181
TROY TERRELL WASHINGTON, a/k/a
Antonio Williams,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Catherine C. Blake, District Judge.
(CR-96-175-CCB)
Submitted: June 2, 1998
Decided: September 2, 1998
Before MURNAGHAN, WILKINS, and NIEMEYER,
Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Michael D. Montemarano, MICHAEL D. MONTEMARANO, P.A.,
Baltimore, Maryland, for Appellant. Lynne A. Battaglia, United
States Attorney, Katharine J. Armentrout, Assistant United States
Attorney, Baltimore, Maryland, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Troy Terrell Washington appeals his convictions and sentences for
conspiracy to distribute and possess with the intent to distribute her-
oin and possession with the intent to distribute heroin in violation of
21 U.S.C. §§ 841(a)(1), 846 (1994). Finding no error we affirm.
Evidence admitted against Washington included taped telephone
conversations obtained pursuant to wire taps. To assist the jury in
considering this evidence, the Government provided transcripts of the
conversations. Washington unsuccessfully moved to compel the Gov-
ernment to produce any draft copies of these transcripts. He argues
that the district court's denial of his motion deprived him of an oppor-
tunity to effectively cross-examine the officers who prepared the testi-
mony and asserts that the drafts were admissible under Fed. R. Evid.
705 and Fed. R. Crim. P. 26(a)(2)(B). We find no abuse of discretion
under either theory. See Lone Star Steakhouse & Saloon, Inc. v. Alpha
of Virginia, Inc., 43 F.3d 922, 929 (4th Cir. 1995) (providing stan-
dard). Moreover, the district court's decision was consistent with our
holding in United States v. Capers, 61 F.3d 1100, 1107 (4th Cir.
1995).
Washington also argues that the district court improperly restricted
his examination of two witnesses. We concur with the district court's
ruling as to the defense's questioning of these witnesses and accord-
ingly we find no abuse of discretion in the district court's action. See
United States v. Bostian, 59 F.3d 474, 480 (4th Cir. 1995) (providing
standard).
Washington next asserts there was insufficient evidence to support
a finding that he was involved with several hundred bags of heroin
found in an attic crawl space of an apartment to which he had unfet-
tered access. In relation to this stash of heroin, the Government pre-
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sented testimony that Washington used the apartment to store the her-
oin and that he had been observed preparing heroin for distribution
from that location. Another witness testified that following the search,
Washington sent him to the apartment to determine if the heroin had
been discovered. We conclude that this and other evidence construed
in the light most favorable to the Government provides substantial
evidence supporting the jury's finding that Washington was "in-
volved" with the heroin found at the apartment. See Glasser v. United
States, 315 U.S. 60, 80 (1942).
Washington also alleges several sentencing errors. First, he con-
tends that the district court erroneously applied a two-point enhance-
ment under U.S. Sentencing Guidelines Manual§ 3C1.1 (1995), for
obstruction of justice because the court concluded he committed per-
jury. To enhance a defendant's sentence under USSG§ 3C1.1, a dis-
trict court must make specific findings that the defendant gave false
testimony on a material matter with the willful intent to deceive. See
United States v. Smith, 62 F.3d 641, 646 (4th Cir. 1995). Because the
sentencing court made appropriate findings to support the enhance-
ment, we find no clear error. See United States v. Puckett, 61 F.3d
1092, 1095 (4th Cir. 1995) (providing standard).
We likewise find no clear error in the district court's determination
that Washington was responsible for between one to three kilograms
of heroin. See United States v. Williams, 986 F.2d 86, 90 (4th Cir.
1993) (providing standard). Washington argues that this figure was
not reasonably foreseeable to him and that the Government engaged
in sentencing entrapment, justifying a departure under USSG § 2D1.1,
comment. (n.15).*
The theory of sentencing entrapment has not been favored by this
Court. Recognizing a distinction between the theories of sentencing
entrapment and sentencing manipulation, without accepting the valid-
ity of either theory, this Court has noted that courts have defined the
former as "`outrageous official conduct [which] overcomes the will of
an individual predisposed only to dealing in small quantities for the
_________________________________________________________________
*Although Washington's brief references application note 16, it is
clear from his argument that he intended application note 15 because
note 16 is inapplicable to the facts of this case.
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purpose of increasing the amount of drugs . . . and the resulting sen-
tence of the entrapped defendant.'" United States v. Jones, 18 F.3d
1145, 1152 (4th Cir. 1994) (quoting United States v. Barth, 990 F.2d
422, 424 (8th Cir. 1993)). We conclude that Washington did not prop-
erly raise this exact sentencing entrapment issue below. We therefore
review this claim for plain error and find none. See United States v.
Olano, 507 U.S. 725 (1993).
Related to this claim of "entrapment," Washington argues that the
Government set an artificially low price for the heroin and asserts that
a departure was therefore warranted under USSG § 2D1.1, comment.
(n.15). While a departure may be granted in such situations, the deci-
sion to depart is left to the discretion of the court. We discern no
abuse of that discretion here.
Finally, Washington argues that the district court erred in applying
a four-level enhancement for being an organizer or leader under
USSG § 3B1.1. This Court reviews a district court's determination in
this regard for clear error. See United States v. Harriott, 976 F.2d 198,
202 (4th Cir. 1992) (providing standard). We find no clear error here.
There were clearly five or more participants in the offense, and the
evidence presented at trial reveals that Washington played a leader-
ship role in this organization. In the taped conversations, Washington
is heard giving orders to other conspirators. These same conversations
capture Washington discussing the provision of testers with a street
dealer, again suggesting decision-making authority. In yet another
conversation, Washington is heard directing a street dealer to keep the
money away from his brother, the individual that Washington por-
trays as the head of the organization. Given this evidence, we find no
clear error in the enhancement.
Accordingly, we affirm Washington's convictions and sentences.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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