Unpublished Disposition, 917 F.2d 29 (9th Cir. 1990)

MEMORANDUM^** 

In these consolidated cases, Corey Woodard appeals his sentence, imposed under the United States Sentencing Guidelines (Guidelines or U.S.S.G.), following his conviction on a guilty plea, for two counts of distribution of cocaine base. Woodard contends that the district court erred by increasing his sentence two levels pursuant to U.S.S.G. Sec. 3B1.1(c), which authorizes such an increase "if the defendant was an organizer, leader, manager, or supervisor in any criminal activity" involving more than one participant. Woodard claims that the government failed to prove by a preponderance of the evidence that he was a leader within the meaning of the Federal Sentencing Guidelines. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

Whether Woodard was an "organizer, leader, manager, or supervisor" pursuant to Sec. 3B1.1 is a question of fact reviewable under the clearly erroneous standard. United States v. Sanchez, 908 F.2d 1443, 1447 (9th Cir. 1990); United States v. Carvajal, 905 F.2d 1292, 1295 (9th Cir. 1990). Circumstances justifying an increase from the base offense level must be proven by a preponderance of the evidence. United States v. Wilson, 900 F.2d 1350, 1354. "Due process requires that a defendant be given an opportunity to assure the accurate presentation of reliable sentencing information to the district court." United States v. Brady, 895 F.2d 538, 542 (9th Cir. 1990) (quoting United States v. Romano, 825 F.2d 725, 728 (2d Cir. 1987)).

U.S.S.G. Sec. 3B1.1(c) authorizes a two level increase in the offense level "if the defendant was an organizer, leader, manager, or supervisor in any criminal activity ..." involving two to five participants. "The degree of control and authority exercised over others" is among the applicable indicia of leadership, but " [t]his adjustment does not apply to a defendant who merely suggests committing the offense." U.S.S.G. Sec. 3B1.1, comment. (n. 3); United States v. Mares-Molina, 913 F.2d 770, 779 (9th Cir. 1990) (some degree of control or authority over others required for upward adjustment of offense level based on leadership role); United States v. Carvajal, 905 F.2d 1292 (9th Cir. 1990) (defendant properly characterized as "leader" in view of defendant's overall control of a drug transaction); United States v. Avila, 905 F.2d 295 (9th Cir. 1990) (defendant who coordinated the procurement and the distribution of drugs properly deemed a "leader").

Here, Woodard supervised a number of people who concealed and delivered cocaine for him. The testimony of Detective Robert Forster, who investigated Woodard's activities, showed that on one occasion, Woodard brought Mel Hurst to a hotel room where he had arranged to meet "Candy," the government's informant. At Woodard's direction, Hurst took cocaine from inside a cast he wore on his arm, and handed it to Candy. On another occasion, Candy called Woodard and arranged to buy some cocaine, and a third person, "Ruby," delivered the drug by herself. On a third occasion, when Candy asked to purchase some cocaine from Woodard, a third person, "Shontell," made the sale at Woodard's direction.

Woodard testified at the hearing that Hurst was only "a friend," and that Ruby and Shontell had sold cocaine to Candy from their own supplies because Woodard had had none of his own to sell. He denied that he employed anyone, or received profit from anyone's transactions. Nonetheless the district court was entitled to disbelieve this testimony. See United States v. Hernandez, 876 F.2d 774, 778 (9th Cir.), cert. denied, 110 S. Ct. 179 (1989).

Based on these facts, the district court did not clearly err by finding that Woodard had directed Hurst, Ruby and Shontell in his capacity as leader of a small cocaine enterprise. As this finding was supported by a preponderance of the evidence, the district court properly applied the upward adjustment. See Avila, 905 F.2d 295 (9th Cir. 1990).

AFFIRMED.