United States v. Ishmael Ford-Bey , 657 F. App'x 219 ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4347
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ISHMAEL BAITH FORD-BEY, a/k/a Jason Green,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Deborah K. Chasanow, Senior District
Judge. (8:13-cr-00492-DKC-2)
Submitted: September 15, 2016 Decided: October 12, 2016
Before DUNCAN and FLOYD, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed in part; vacated and remanded in part by unpublished
per curiam opinion.
Marvin D. Miller, LAW OFFICES OF MARVIN D. MILLER, Alexandria,
Virginia, for Appellant. Rod J. Rosenstein, United States
Attorney, Deborah A. Johnston, Thomas P. Windom, Assistant
United States Attorneys, Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ishmael Baith Ford-Bey appeals his 396-month sentence
imposed pursuant to his guilty plea to various drug and money
laundering charges. On appeal, Ford-Bey challenges his
leadership role enhancement, his firearm enhancement, and the
drug quantity attributed to him. We conclude that the district
did not err in applying an enhancement for Ford-Bey’s role in
the offense or in calculating the applicable drug quantity.
However, we find that the firearm enhancement was improper, and
thus, we vacate Ford-Bey’s sentence and remand for resentencing.
I.
We review sentencing adjustments based on a defendant’s
role in the offense for clear error. United States v. Sayles,
296 F.3d 219, 224 (2002). In addition, we may affirm a sentence
enhancement for any reason appearing in the record. United
States v. Garnett, 243 F.3d 824, 830 (4th Cir. 2001) (appellate
courts may “affirm [sentence enhancements] on the basis of ‘any
conduct [in the record] that independently and properly should
result in an increase in the offense level’ by virtue of the
enhancement”) (citation omitted). A defendant’s offense level
is to be increased by four levels “[i]f the defendant was an
organizer or leader of a criminal activity that involved five or
more participants.” U.S. Sentencing Guidelines Manual
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§ 3B1.1(a) (2014). The following factors should be considered
in determining whether a role adjustment is warranted:
(1) the exercise of decision making authority, (2) the
nature of participation in the commission of the
offense, (3) the recruitment of accomplices, (4) the
claimed right to a larger share of the fruits of the
crime, (5) the degree of participation in planning or
organizing the offense, (6) the nature and scope of
the illegal activity, and (7) the degree of control
and authority exercised over others.
See United States v. Kellam, 568 F.3d 125, 148 (4th Cir. 2009)
(citing USSG § 3B1.1 cmt. 4).
However, a defendant need only exercise control over one
other participant in order to be deemed a leader or organizer.
USSG § 3B1.1 cmt. 2. This is “not a particularly onerous
showing,” requiring “only a conclusion that [the defendant]
supervised at least one . . . participant,” and it “does not
require the court to identify specific examples.” See United
States v. Hamilton, 587 F.3d 1199, 1222 (10th Cir. 2009)
(citations omitted). Moreover, once the court has determined
that the defendant exercised some control over at least one
participant, it need look no further into whether or not the
defendant exercised control over others. Id. at 1223.
Taking the record as a whole, there is ample evidence to
support the district court’s determination that Ford-Bey was a
leader or organizer of a criminal enterprise consisting of five
or more people. First, it is undisputed that the organization
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consisted of five or more people. As for the level of control
Ford-Bey had over his cohorts, the evidence presented at
sentencing clearly established that Ford-Bey was a leader and/or
organizer of his group. In addition to being the top of the
supply stream for tens of millions of dollars worth of cocaine,
Ford-Bey received large, monthly drug shipments from January
2011 until August 2012. Ford-Bey directed the truck driver to
the particular location for delivery of the shipment. In
addition, Ford-Bey sent his “brother” to meet the truck driver
on at least one occasion and directed the truck driver to give
the shipment to the brother. Ford-Bey paid the truck driver to
take money back to his supplier. The evidence also shows that
Ford-Bey retained the authority to decide whether money would be
going back with the truck driver. In addition, the evidence
showed that at least one co-conspirator sold drugs he received
from Ford-Bey and collected payments that he delivered to
Ford-Bey.
While Ford-Bey asserts that the evidence merely shows
buyer-seller relationships between him and his supplier and
those to whom he sold drugs, we have never held that a criminal
enterprise must have a rigid structure or be the only criminal
enterprise its members are a part of before conspiratorial
criminal liability can attach. Cf. United States v. Burgos, 94
F.3d 849, 858 (4th Cir. 1996) (en banc) (“[W]hile many
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conspiracies are executed with precision, the fact that a
conspiracy is loosely-knit, haphazard, or ill-conceived does not
render it any less a conspiracy — or any less unlawful.”). As
stated above, under § 3B1.1, the Government need only establish
that a defendant exercised control over one of his
co-conspirators, not that he exercised rigid or exclusive
control over any of them. Moreover, the selling of drugs on
consignment does not create a wall between a seller and his
downstream co-conspirators. In fact, a dealer who “fronts”
drugs to a lower-level dealer with the expectation that the
drugs will be sold and he will be repaid from the proceeds of
those sales “overstep[s] a mere seller’s role,” and assumes a
control position. See United States v. Pena, 67 F.3d 153, 156
(8th Cir. 1995); United States v. Atkinson, 85 F.3d 376, 378
(8th Cir. 1996).
Where a defendant “retain[s] the financial risk of a
distribution by fronting or consigning the drugs,” to another
dealer, he remains invested in the ultimate distribution of
those drugs to their end-users and retains a certain measure of
control over those drugs and/or the dealer he has tasked with
selling them. See generally Pena, 67 F.3d at 156-157. Thus,
Ford-Bey cannot hide behind the technical structure of his
arrangements with his coconspirators to insulate himself from
leadership liability in this conspiracy. Accordingly, the
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district court did not commit clear error in giving Ford-Bey a
four-level adjustment for his role in the conspiracy.
II.
Section 2D1.1(b)(1) of the Guidelines directs a district
court to increase a defendant’s offense level by two levels
“[i]f a dangerous weapon (including a firearm) was possessed.”
The enhancement is proper when the weapon at issue “was
possessed in connection with drug activity that was part of the
same course of conduct or common scheme as the offense of
conviction,” United States v. Manigan, 592 F.3d 621, 628-29 (4th
Cir. 2010) (internal quotation marks omitted), even in the
absence of “proof of precisely concurrent acts, for example, gun
in hand while in the act of storing drugs, drugs in hand while
in the act of retrieving a gun.” United States v. Harris, 128
F.3d 850, 852 (4th Cir. 1997) (internal quotation marks
omitted). Nonetheless, the Government has the burden of
establishing by a preponderance of the evidence “that a temporal
and spatial relation existed between the weapon, the drug
trafficking activity, and the defendant.” United States v.
Romans, 823 F.3d 299, 317 (5th Cir. 2016), petition for cert.
filed, (July 6, 2016). Under this standard, “the Government
must show that the weapon was found in the same location where
drugs or drug paraphernalia are stored or where part of the
transaction occurred.” Id. Once the Government has met its
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burden, the defendant can avoid the enhancement by showing that
“it is clearly improbable that the weapon was connected with the
offense.” Harris, 128 F.3d at 852.
The district court ruled that a handgun was found in
Ford-Bey’s residence at a time when he was significantly
involved in drug trafficking and that Ford-Bey attempted to go
back to his residence after a drug delivery went bad. Ford-Bey
contends that the Government failed to connect the firearm to
any activity or place where drug dealing occurred and notes that
no drugs or drug paraphernalia were found at his home.
The only even marginally drug-related items found in
Ford-Bey’s home were many luxury items that were presumably
purchased with drug proceeds and were forfeited as such.
However, the Government does not cite any case law supporting
the conclusion that a firearm found in close proximity to items
purchased with drug proceeds satisfies the nexus requirement of
USSG § 2D1.1. Although the proceeds are circumstantial evidence
of Ford-Bey’s drug dealing, their presence in his home does not
establish that any drug transactions took place there. See
Romans, 823 F.3d at 318-19. Further, there is no evidence that
Ford-Bey ever carried a gun with him during his drug dealings.
Given the absence of evidence that the weapon was in the same
location as drugs or drug paraphernalia or that the weapon was
where any part of any drug transaction took place, the
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Government has failed to meet its burden of showing the
necessary nexus. Thus, the district court’s enhancement was
clearly erroneous. Accordingly, we vacate Ford-Bey’s sentence
and remand for resentencing.
III.
A defendant convicted of conspiring to distribute
controlled substances is accountable for all quantities of
contraband with which he was directly involved and, in the case
of a jointly undertaken criminal activity, all reasonably
foreseeable quantities of contraband that were in furtherance of
the joint criminal conduct and were reasonably foreseeable to
the defendant. USSG § 1B1.3 cmt. n.3. The Government must
prove the drug quantity attributable to the defendant by a
preponderance of the evidence. United States v. Carter, 300
F.3d 415, 425 (4th Cir. 2002). A district court’s findings on
drug quantity are generally factual in nature and therefore, are
reviewed by this court for clear error. Id.The district court noted that the threshold amount for the
highest offense level was 450 kilograms of cocaine. The court
reasoned that, between March and August 2012, there were seven
clusters of calls between the truck driver and Ford-Bey. The
court ruled that “there’s not reason for Mr. Ford-Bey to be
talking to this truck driver except when this truck driver is
here delivering the cocaine.” Although the court did not do any
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specific calculations, it determined that, “with just the truck
driver,” the amount seized from the last delivery, and the
telephone records, the amount is well over 450 kilograms.
Ford-Bey contends that the district court’s finding is strictly
speculation and that the prior deliveries could well have been
marijuana, as the driver believed.
We conclude that the district court’s calculations were
properly based on the truck driver’s testimony and the
corroborating phone records. While the truck driver initially
believed that he was hauling marijuana, he realized later that
he had been transporting cocaine. The appearance of the boxes
and the procedure never changed, and the record provides no
support for the conclusion that the contents of the boxes had
been altered. Ford-Bey has come forward with no evidence that
he was trafficking in marijuana up until the last shipment, and
in fact, he pled guilty to a cocaine conspiracy covering several
years.
Moreover, the court’s calculations did not include any of
the laundered money. The record reveals more than $500,000 in
cash deposited into Ford-Bey’s bank accounts during the relevant
time period and the court ordered the forfeiture of more than
$108,000,000 in cash and other items. The record reveals that a
kilogram of cocaine cost could gross $80,000, when sold by the
gram. Thus, the forfeited funds represent the sale of three
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times the drug amount required for the offense level adopted by
the district court. Given the truck deliveries and the evidence
regarding the drug proceeds, there is no clear error in the
district court’s ruling on drug quantity.
Accordingly, we affirm the district court’s rulings
regarding drug quantity and Ford-Bey’s role in the offense.
Because the firearm enhancement was clearly erroneous, we vacate
Ford-Bey’s sentence and remand for resentencing. We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before this court and
argument would not aid the decisional process.
AFFIRMED IN PART;
VACATED AND REMANDED IN PART
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