United States v. Brewington ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5811
BILLY ARON BREWINGTON, JR.,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of North Carolina, at Winston-Salem.
Frank W. Bullock, Jr., Chief District Judge.
(CR-95-78)
Submitted: April 15, 1996
Decided: April 29, 1996
Before ERVIN and MOTZ, Circuit Judges, and CHAPMAN,
Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Thomas H. Johnson, Jr., GRAY, NEWELL & JOHNSON, L.L.P.,
Greensboro, North Carolina, for Appellant. Walter C. Holton, Jr.,
United States Attorney, Loretta C. Biggs, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Billy Aron Brewington, Jr., pled guilty to conspiracy to possess
crack cocaine with intent to distribute, 21 U.S.C.A.§ 841 (West 1981
& Supp. 1995). He appeals his 164-month sentence, challenging the
district court's determination of the amount of crack attributable to
him under the sentencing guidelines, USSG § 2D1.1,* as well as the
constitutionality of the guidelines. We affirm.
Between 1992 and 1995, Brewington traveled to New York numer-
ous times with various co-conspirators who pooled their resources to
obtain crack and powder cocaine for sale in North Carolina. Brewing-
ton was the one who knew a source for cocaine in New York; later
he found a second one. He often had others transport the cocaine back
to North Carolina for him. When powder cocaine was purchased,
Brewington cooked it into crack on his return to North Carolina and
divided it among the purchasers. The probation officer recommended
that Brewington be held responsible for 2.8 kilograms of crack, the
entire amount of crack he obtained in concert with the other conspira-
tors. Brewington argued at sentencing that only the amounts pur-
chased with money he contributed (approximately half of the total)
should be attributed to him because that was the limit of his agree-
ment. The district court found him responsible for the whole 2.8 kilo-
grams.
A defendant who has engaged in a conspiracy is responsible for
"all reasonably foreseeable acts and omissions of others in furtherance
of the jointly undertaken criminal activity." USSG § 1B1.3(a)(1)(B).
Conduct of others which is not in furtherance of the criminal activity
jointly undertaken by the defendant is not relevant conduct. USSG
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*United States Sentencing Commission, Guidelines Manual (Nov.
1994).
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§ 1B1.3, comment. (n.2); see United States v. Gilliam, 987 F.2d 1009,
1012-13 (4th Cir. 1993). It is readily apparent that all the crack
obtained by Brewington and his co-conspirators was in furtherance of
the conspiracy which Brewington had entered into and was within the
scope of the agreement he made. The district court did not err in attri-
buting the entire 2.8 kilograms to him.
Brewington also argues that the disparity between penalties for
crack offenses and for cocaine offenses in § 841 and USSG § 2D1.1
violates due process, equal protection, and the Eighth Amendment.
He acknowledged that prior decisions of this court have held other-
wise, and we find no merit in his contention. See, e.g., United States
v. Fisher, 58 F.3d 96, 98-100 (4th Cir.), cert. denied, 64 U.S.L.W.
3270 (U.S. Oct. 10, 1995); United States v. Thomas, 900 F.2d 37, 39-
40 (4th Cir. 1990).
The sentence imposed by the district court is therefore affirmed.
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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