United States of America, Plaintiff-appellee, v. James Earl Poteet, Defendant-appellant.united States of America, Plaintiff-appellee, v. Terry Richard Anderson, A/k/a Red, Defendant-appellant.united States of America, Plaintiff-appellee, v. James Michael Bowers, A/k/a Mike, Defendant-appellant.united States of America, Plaintiff-appellee, v. Frank Everette, Jr., Defendant-appellant.united States of America, Plaintiff-appellee, v. Dennis Howell Smith, Defendant-appellant.united States of America, Plaintiff-appellee, v. Miles Thomas Clarke, Defendant-appellant.united States of America, Plaintiff-appellee, v. Hugh Landy Stovall, A/k/a Hugh Landis Stovall, A/k/a Landy,a/k/a Landy Bowers, Defendant-appellant, 940 F.2d 654 (4th Cir. 1991)

Following pleas of guilty to various drug related offenses, the appellants, James Earl Poteet, Terry Richard Anderson, James Michael Bowers, Frank Everette, Jr., Dennis Howell Smith, Miles Thomas Clarke, and Hugh Landis Stovall were sentenced under the United States Sentencing Guidelines. After all of the appellants had entered their guilty pleas, the court postponed sentencing to allow presentence reports to be prepared and filed. After these reports were filed, the United States filed a position paper with respect to the offense conduct section of the presentence reports. In this document the United States Attorney commented upon the presentence reports' recitation of facts regarding the offense and made certain additions and corrections. Prior to sentencing, there were conferences between defense counsel and the probation officer. Prior to sentencing, the United States filed documents entitled "Position of the United States With Respect to Sentencing Factors" as to each of the seven appellants. Pursuant to Sec. 6A1.2 of the sentencing guidelines, each appellant filed with the court a document outlining his position with respect to the presentence report and the sentencing factors to be considered by the court. The district court conducted hearings and took testimony on the various contested issues and filed separate written orders as to each appellant. In these orders the court made findings of fact on the various factual issues presented and ruled upon the legal questions raised.

We have carefully reviewed the record and the briefs, and we have heard oral argument on each of the issues presented. We are persuaded that the sentencing judge was not clearly erroneous in the factual findings supporting each sentence. We also find that he properly interpreted the sentencing guidelines in arriving at the sentence imposed in each case. Therefore, we affirm.

Appellant Poteet was sentenced to a term of imprisonment of 235 months after pleading guilty to a superseding criminal information charging him with conspiracy to distribute and to possess with intent to distribute in excess of 500 grams of cocaine and in excess of 100 kilograms of marijuana. Poteet claims that his offense level was improperly enhanced due to an incorrect classification of him as a manager or supervisor in the conspiracy and that his offense level was further improperly increased by 2 levels as a result of a claim that he had used a firearm during the commission of the offense. He also claimed ineffective assistance of counsel because his attorney did not object to certain factors used to determine his offense level.

At the sentencing hearing, Poteet testified that he was satisfied with the portion of the presentence report describing his criminal history and his offense conduct. He did complain that the presentence report did not fully and fairly cover his background because, he claimed, it reported only his bad side and not his good traits. He also expressed his dislike of the guidelines. In the court's written order, it found as a fact that the 2 level enhancement under Sec. 3B1.1(c) was justified because the court found that he occupied a position of manager or supervisor in the criminal conspiracy. The sentencing court did not discuss the 2 level enhancement for use of a firearm, but the court, after making findings as to Poteet's position in the conspiracy, found "all of the allegations in the presentence report to be factually and legally correct." Paragraph 20 of the presentence report reflected appellant's purchase of ten firearms during the course of the conspiracy, and on two occasions, using firearms in a threatening manner against people who worked with him in the cocaine business. The court's finding on this issue is not clearly erroneous.

We find no merit to Poteet's claim that he was denied effective assistance from counsel. Under Strickland v. Washington, 466 U.S. 668 (1984), he must show that his attorney's performance was deficient and that the deficiencies actually prejudiced his defense. Poteet claims that his attorney's failure to challenge the quantity of drugs and the 2 level increase for possession of a firearm was not the result of reasonable professional judgment. Poteet took the stand during his sentencing hearing and was asked by the court if he objected to the facts as recited by the Assistant United States Attorney and as contained in the presentence report. Poteet reviewed the presentence report very carefully as evidenced by his objections to certain sections, and he advised the court that he had been over the presentence report and was satisfied with its description of his criminal history and his offense conduct. This description clearly set forth the quantity of drugs involved and Poteet's use of a firearm. Poteet cannot raise before us an issue he obviously waived in the district court.

Appellant Smith argued that the district court erred in determining his total offense level. He argued that since his plea of guilty was to possession with intent to distribute 500 grams or more of cocaine, he should have been subject to a base offense level of 26. He contends that the district court added an additional 100 pounds of cocaine and 10 pounds of marijuana, thereby giving him an offense level of 34. This contention was made at the sentencing hearing and the court heard evidence from both sides and found that Smith could have reasonably foreseen the distribution of the amount of cocaine attributed to him. The court also found that Smith was a manager and supervisor of individuals distributing cocaine and the 2 level increase under Sec. 3B1.1(c) was appropriate. We have reviewed the record and the court's findings, and we conclude that such findings are not clearly erroneous.

When Smith's plea of guilty was taken, a presentation of the facts was made by the Assistant United States Attorney and this included a claim that, during the course of the conspiracy, 178 pounds of cocaine and 500 pounds of marijuana were brought into the Eastern District of Virginia. Appellant Smith, through his attorney, indicated that this statement comported with his investigation.

Appellant Anderson entered a plea of guilty to conspiracy to distribute and possess with intent to distribute in excess of 500 grams of cocaine and an excess of 100 kilograms of marijuana. He claims error by the sentencing court in determining the amount of cocaine that he could reasonably foresee being handled by the conspiracy. U.S. Sentencing Guideline Sec. 1B1.3 covers relevant conduct and, under this section, a defendant is responsible for the acts of coconspirators that were reasonably foreseeable by him.

Anderson claims that the only evidence as to the amount of cocaine was contained in his presentence report and that this represented no more than the probation officer's conclusion and was unsubstantiated hearsay evidence because no witness testified that he was involved in the conspiracy or knew the extent of drugs being handled by the conspiracy.

At his sentencing hearing, Anderson objected to certain materials contained in and statements made in his presentence report. The district court considered these exceptions and made certain corrections and amendments to the presentence report. At the time of sentencing, Anderson testified that the presentence report, as amended, was correct in its statement of the offense conduct, and in doing so he stipulated to the amount of drugs. When he was arrested he was in possession of 94 pounds of marijuana, and he admitted selling cocaine in quantities ranging from a few grams to as much as two ounces per transaction. He was given the opportunity to object and challenge the accuracy of the presentence report, and he exercised this right prior to sentencing. However, he stipulated that the offense conduct as set forth in the amended presentence report was accurate, and therefore he has not preserved for appeal his claim that he could not have reasonably foreseen the amount of cocaine distributed by the conspiracy. See United States v. Matlock, 786 F.2d 357 (8th Cir. 1986).

Appellant Clarke claims error by the district court in finding that he was an organizer or manager under U.S. Sentencing Guideline Sec. 3B1.1(c). After hearing evidence on this issue, the court found that the evidence showed Clarke managed the marijuana arm of the conspiracy; that he and others under his direction made frequent trips to North Carolina, Texas and Tennessee to purchase marijuana for transport back to Virginia; that Clarke and others under his direction stored or packaged drugs for distribution; and that this activity involved five or more participants. This finding is supported by the evidence and is not clearly erroneous.

Appellant Stovall claims error in the amount of illegal drugs attributed to him. He filed the position paper setting forth his objections and a hearing was held before the district judge at which the government presented evidence, including the testimony of the investigating police officer. The court concluded that he could reasonably have foreseen the distribution of at least 140 pounds of cocaine and 800 to 900 pounds of marijuana. The record showed that Stovall had been a cocaine courier on approximately six occasions bringing 10 kilograms of cocaine on each occasion into Virginia. The record also reflects sizable purchases and sales of marijuana. Even after Stovall had been imprisoned, he was still involved in large cocaine transactions. The findings of the district court as to the amounts that Stovall could reasonably foresee being distributed by the conspiracy are not clearly erroneous.

Appellant Everette challenges the government's assertion that he could have reasonably foreseen the distribution of at least five kilograms of cocaine. This represents a very small amount when the overall activities of the conspiracy are considered, but Everette claims that he was primarily a dealer in marijuana and was not aware of how much cocaine was being distributed by his coconspirators. He does admit the sale of small amounts of cocaine by himself, but, he claims these were only for the convenience of his marijuana customers. He also claims that his source of cocaine was a person not involved in the present conspiracy.

We find no merit to this claim. The findings of the district court as to what the appellant Everette could have foreseen are not clearly erroneous.

Appellant Bowers claims that the government violated the plea agreement that it entered into with him by recommending an upward departure from the guidelines and that the district court erred in departing upward from the guidelines.

The plea agreement entered into between Bowers and the United States was filed with the court on December 18, 1989 and provided in paragraphs 2 and 11 as follows:

2. The government agrees to make no recommendation at the time of sentencing as to what sentence should be imposed on the defendant. The government does, however, reserve the right to answer any factual questions asked by the Court, and to comment on any statement of the defendant or his counsel which is contrary to the evidence possessed by the government. The government also reserves the right to respond to any factual questions asked by the United States Probation Department in conducting a pre-sentence investigation. However, the government will advise the court of the nature and extent of the defendant's cooperation in this case and the date when such cooperation began.

11. The government reserves the right to carry out its responsibilities under guidelines sentencing. Specifically, the government reserves the right: (1) to bring its version of the facts of this case to the attention of the probation office in connection with that office's preparation of a presentence report; (2) to dispute sentencing factors or facts material to sentencing; (3) to seek resolution of such factors or facts in conference with opposing counsel and the probation office, as contemplated in the Court's Policy Regarding Procedures to be followed in Guidelines Sentencing; and (4) to file a pleading entitled "Positions of Parties with Respect to Sentencing Factors," in accordance with Sec. 6A1.2 of the Sentencing Guidelines and Policy Statements and paragraphs 5 and 6 of the Court's Policy Regarding Procedures to be followed in Guidelines Sentencing.

After presentence reports had been prepared for Bowers and his codefendants, the government noted certain errors and prepared a pleading entitled "Position of the United States with Respect to Offense Conduct." Copies were mailed to counsel of record. The factual errors were corrected and then there were conferences between the defense counsel and the United States Attorney's Office. Separate pleadings entitled "Position of the United States With Respect to Sentencing Factors" were filed as to each defendant. As to Bowers, the government raised an objection to the omission of aggravating and mitigating circumstances in the last section of the report, but it made no recommendation. The sentencing court stated that no recommendation had been made, but, if one were considered made, it was disregarded.

Bowers now objects because, at the sentencing hearing, testimony of police officer Lewis was taken. He seems to feel that his statement should have been presented by affidavit. However, in previous sentencings, the court had insisted upon live testimony. This presentation of the police officer did not in any way violate the plea agreement. Under paragraph 11 of the plea agreement, the government reserved the right to bring to the court's attention its version of the facts and to dispute facts material to sentencing.

Bowers objected to the district court's consideration of the position paper with respect to sentencing factors, but again this is a right the government reserved under the plea agreement. The position paper does not amount to a recommendation of an upward departure from the guideline range. The trial court did not consider the government's position paper to be a motion for upward departure, but in order to protect the appellant, it sustained his objection to the extent that the paper might be considered as an argument in support of an upward departure.

The court determined that a base offense level of 36 and a criminal history category of IV underrepresented the defendant's criminal history and that an upward departure was justified. In arriving at its decision to make an upward departure, the sentencing court made the following finding:

Pursuant to Title 18, United States Code, Section 3553(b) the Court imposed a sentence greater than the guideline range because the Court found three aggravating circumstances "of a kind, or to a degree not adequately taken into consideration by the Sentencing Commission in formulating the guidelines." First, the defendant has sanctioned the use of violence in connection with the conspiracy. The evidence at the sentencing hearing and the Presentence Report show that the defendant had hired a "hit man" to carry out the murder of two people whom the defendant believed to be government informants. An agent for the defendant delivered two .38 caliber revolvers to the "hit man" and negotiated a $15,000 fee for the murders. The defendant met with the "hit man" and pointed out several locations where the intended victims lived and worked. Although the defendant ultimately called-off the "hit man," the Court found that enough time had passed between the "contract" and the "revocation" to show that the plan was not the product of a drug induced whim but, instead, a sophisticated and carefully planned action of the most abhorrent nature. Accordingly, the Court found that the defendant's sanction of violence justified the upward departure. Second, the evidence adduced at the sentencing hearing showed that the quantity of drugs attributable to the defendant substantially exceeds that required for a Base Offense Level 36 in the drug quantity table. Indeed, the amount of cocaine and marihuana reasonably foreseeable to the defendant as the leader of the conspiracy was more than double that required for a Base Offense Level of 36. It is evident that such a great quantity was not adequately taken into consideration by the Sentencing Commission in formulating the guidelines. Thus, the Court felt justified in departing from the guideline range. Third, the defendant's extensive criminal history was not adequately represented by a strict application of the guidelines. As the forty paragraphs of criminal history make pellucidly clear, the defendant is a career criminal who seldom went six months without a brush with the law unless he was incarcerated during that time. Yet despite such an extensive criminal record, his criminal history is only Category IV. It is the opinion of the Court that Category IV seriously underrepresents the defendant's criminal history and likelihood of recidivism. Accordingly, the Court felt justified in departing from the guideline range.

Bowers pled guilty to conducting a continuing criminal enterprise, and Sec. 2D1.5 of the guidelines provide that an upward departure may be warranted if the defendant sanctioned the use of violence. The district court's findings as to the intended use of a hit man by Bowers is not clearly erroneous. Note 2 to Sec. 2D1.5 states that an upward departure may be warranted if the quantity of drugs involved in the enterprise substantially exceeds that required for a level 36 in the drug quantity table. At Bowers' insistence, the district court used the guidelines in effect prior to November 1, 1989. Under these guidelines, level 36 was the highest possible for those convicted of operating a continuing criminal enterprise and only 50 kilograms of cocaine was required to reach this level. Bowers is chargeable with 164 kilograms of cocaine and at least 900 pounds of marijuana. The quantity of narcotics distributed by an enterprise was not a factor considered by the Sentencing Commission prior to November 1, 1989, and, therefore, it was a proper ground for an upward departure. The trial court did not abuse its discretion in departing upward by 98 months.

The trial court also properly concluded that Bowers' criminal history category did not adequately reflect the seriousness of his past criminal conduct and his likelihood of recidivism. Section 4A1.3 provides that, in determining whether an upward departure is warranted, a court may consider prior sentences that are not used in computing the criminal history category. Bowers had five felony convictions and 28 other convictions. He was also on bond pending trial on other drug charges during the course of this conspiracy, and this was not taken into account in the calculation of his criminal history category. We find no error in Bowers' sentence.

For the reasons hereinabove set forth, the sentences of all of the appellants are

AFFIRMED.