United States v. Green , 537 F. App'x 806 ( 2013 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
TENTH CIRCUIT October 10, 2013
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Petitioner - Appellee, No. 12-7054
v. (E.D. Oklahoma)
GERALD WAYNE GREEN, a/k/a Duck, (D.C. No. 6:10-CR-00084-RAW-3)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before HARTZ, HOLMES, and BACHARACH, Circuit Judges.
Mr. Gerald Wayne Green was convicted of distributing cocaine base within
1,000 feet of a school or playground. See 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C),
860(a) (2006). Under the Federal Sentencing Guidelines, Mr. Green’s sentence
could be affected by the volume of cocaine base attributable to him. The
sentencing judge found that Mr. Green was responsible for all of the cocaine
bought by himself and his co-defendant, Eric Vaughn Glenn. Based on that
volume of cocaine base, the judge sentenced Mr. Green to a 168-month sentence
and 72 months of supervised release.
*
This order and judgment does not constitute precedent. See 10th Cir. R.
32.1(A).
The scope of our review is limited: Viewing all the evidence in the light
most favorable to the sentencing decision, did the district court commit clear
error? Concluding it did not, we affirm.
Sentencing and the Volume of
Cocaine Base Attributable to Mr. Green
After convicting Mr. Green of distributing cocaine base within 1,000 feet
of a public school or playground, the district court had to determine the sentence.
Under the Federal Sentencing Guidelines, the volume of drugs attributable to Mr.
Green could affect that sentence. So, to properly sentence Mr. Green, the district
court had to determine the volume of cocaine base attributable to him.
For this determination, the court could consider the weight of drugs
purchased by both Mr. Green and Mr. Glenn. The court ultimately found Mr.
Green responsible for over 4.056 kilograms of cocaine base. R. vol. 2, at 693.
This finding was based on the cumulative weight of the drugs purchased by both
Mr. Green and Mr. Glenn.
In considering the cocaine base purchased by Mr. Glenn, the district court
had the benefit of testimony by his girlfriend, Hyme LaFaunce. She testified that:
 she was an addict and ordinarily purchased cocaine base from
Mr. Glenn; but when he was hospitalized on two occasions,
she bought from Mr. Green; and
 Mr. Green and Mr. Glenn traveled together for about two to
three years to buy cocaine base from their common supplier
and each transaction involved at least three ounces.
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Issues on Appeal
Mr. Green appeals his sentence on two grounds: (1) that the evidence does
not establish that he and Mr. Glenn engaged in jointly undertaken criminal
activity, and (2) that Mr. Green is not responsible for the entire volume of drugs
implicated in the conspiracy.
Standard of Review
We must affirm unless the district court committed clear error in
determining the drug quantity attributable to a defendant, including the scope of
jointly undertaken criminal activity. United States v. Sells, 541 F.3d 1227, 1235
(10th Cir. 2008). In applying this standard, we construe the evidence and draw
inferences in the light most favorable to the district court’s determination. See
United States v. Walters, 269 F.3d 1207, 1214 (10th Cir. 2001). We will reverse
factual findings on drug quantities “‘only if the district court’s finding was
without factual support or we are left with the definite and firm conviction that a
mistake has been made.’” United States v. Ryan, 236 F.3d 1268, 1273 (10th Cir.
2001) (citation omitted).
Jointly Undertaken Criminal Activity
On appeal, Mr. Green argues that the evidence does not establish that he
and Mr. Glenn engaged in jointly undertaken criminal activity. We disagree.
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The Federal Sentencing Guidelines define “jointly undertaken criminal
activity” as “a criminal plan, scheme, endeavor, or enterprise undertaken by the
defendant in concert with the others, whether or not charged as a conspiracy.”
U.S. Sentencing Guidelines Manual § 1B1.3 n.2 (2010). In applying this
definition, the district court pointed to the testimony by Ms. LaFaunce. She
testified that Mr. Green and Mr. Glenn had obtained drugs for each other on
several occasions. And this testimony supported the district court’s conclusion
that:
● Mr. Green and Mr. Glenn had jointly engaged in a “criminal plan” to
purchase drugs for each other, and
● this criminal plan satisfied the definition of “jointly undertaken
criminal activity.”
Accordingly, we hold that the district court did not clearly err in finding that Mr.
Green had engaged in jointly undertaken criminal activity with Mr. Glenn.
Quantity of Cocaine Base Attributable to Mr. Green
The district court found Mr. Green responsible for 4.056 kilograms of
cocaine base. This finding did not involve a clear error.
The weight of drugs attributable to Mr. Green “is not necessarily based on
the overall amount involved in the conspiracy for which he was convicted or on
the transactions in which he personally participated.” United States v. Figueroa-
Labrada, 720 F.3d 1258, 1265 (10th Cir. 2013). Instead, he is responsible for
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drugs: (1) that are within the scope of criminal activity he agreed to undertake,
and (2) that are reasonably foreseeable in connection to the criminal activity. Id.(construing U.S. Sentencing Guidelines Manual § 1B1.3 n.2 (2010)). Under the
illustrations to the Federal Sentencing Guidelines, a drug dealer who pools his
resources and profits with other drug dealers is accountable for the other dealers’
sales because they are “in furtherance of the jointly undertaken criminal activity
and reasonably foreseeable in connection with that criminal activity.” U.S.
Sentencing Guidelines Manual § 1B1.3 illus. (c)(6) (2010).
Ms. LaFaunce’s testimony, which the district court found credible,
indicates that the two men pooled their resources by traveling together and
making trips for one another for about two to three years.
This evidence was sufficient for the district court to reasonably view the
4.056 kilograms of cocaine base to be both:
 reasonably foreseeable to Mr. Green and
 within the scope of his jointly undertaken criminal activity
with Mr. Glenn.
Thus, the court did not clearly err in calculating Mr. Green’s sentence
based on 4.056 kilograms of cocaine base.
Conclusion
We conclude that the district court did not clearly err in determining: (1)
that Mr. Green and Mr. Glenn had engaged in jointly undertaken criminal
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activity, and (2) that the evidence was sufficient for the district court to find that
4.056 kilograms of cocaine base was reasonably foreseeable and within the scope
of that criminal activity. Therefore, we affirm.
Entered for the Court
Robert E. Bacharach
Circuit Judge
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