United States v. Beverly Baker , 539 F. App'x 299 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-5025
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BEVERLY ALLEN BAKER,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever, III,
Chief District Judge. (5:11-cr-00237-D-1)
Submitted: September 23, 2013 Decided: September 26, 2013
Before GREGORY, DAVIS, and WYNN, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Sean P. Vitrano, VITRANO LAW OFFICES, PLLC, Wake Forest, North
Carolina, for Appellant. Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Yvonne V. Watford-McKinney,
Assistant United States Attorneys, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Beverly Allen Baker was convicted by a jury of
conspiracy to distribute 280 grams or more of cocaine base
(crack) in violation of 21 U.S.C. § 846 (2006), and nine counts
of crack distribution, 21 U.S.C. § 841 (2006). She was
sentenced to life imprisonment. Baker appeals her sentence,
contending that the district court miscalculated her Guidelines
range. We agree that the court made several procedural errors
which cannot be deemed harmless. United States v. Savillon-
Matute, 636 F.3d 119, 123-24 (4th Cir. 2011). Consequently, we
vacate the sentence and remand for resentencing.
Testimony at Baker’s trial established that she sold
crack from her home between 2002 and 2011. At times, her
boyfriend, her brother, and her sister also sold crack there.
Government witnesses included two of her regular customers and
several of her suppliers. In the presentence report, the
probation officer attributed nineteen kilograms of crack to
Baker based on written estimations by her suppliers of the
amounts they sold to her. This information resulted in a
recommended base offense level of 38. U.S. Sentencing
Guidelines Manual § 2D1.1(c)(1) (2012). The probation officer
also recommended offense level increases for possession of a
firearm, see USSG § 2D1.1(b)(1), for being a leader or organizer
in the offense, see USSG § 3B1.1(a), for involving minors while
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having an aggravated role, see USSG § 2D1.1(b)(14)(B)(i), and
for obstruction of justice, see USSG § 3C1.1. Baker was in
criminal history category III. Her Guidelines range was life
imprisonment.
At the sentencing hearing, the government asserted
that supplier Wayne Vick’s trial testimony, as opposed to his
written statements, supported a finding that he supplied Baker
with about six kilograms of crack rather than the fourteen
kilograms recommended in the presentence report. The government
argued that, even with the reduction, the total quantity of
crack attributable to Baker was more than 8.4 kilograms of
crack. Without making specific findings to determine the
quantity of crack attributable to Baker, the district court
agreed that base offense level 38 applied. The court also
overruled Baker’s objections to the remaining sentence
enhancements. The court rejected Baker’s request for a downward
variance to a sentence of thirty years and imposed a life
sentence.
We review sentences for procedural and substantive
reasonableness under an abuse of discretion standard. Gall v.
United States, 552 U.S. 38, 51 (2007). Miscalculation of the
Guidelines range is a significant procedural error. Id. We
review the district court’s factual findings for clear error and
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its legal determinations de novo. United States v. Llamas, 599
F.3d 381, 387 (4th Cir. 2010).
Baker first argues on appeal that the amount of crack
attributed to her was clearly erroneous because it was based on
unreliable evidence. 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). The district court may rely on information in the
presentence report unless the information is inaccurate or
unreliable. Id. A district court’s findings on drug quantity
are generally factual in nature, and therefore are reviewed by
this court for clear error. Id. In determining the amount of
drugs attributable to the defendant, “[w]here there is no drug
seizure or the amount seized does not reflect the scale of the
offense, the court shall approximate the quantity of the
controlled substance.” USSG § 2D1.1 cmt. n.5.
Here, the district court estimated that Baker bought
and sold more than 8.4 kilograms of crack, the threshold amount
for base offense level 38. Baker argues that the district
court’s finding that she was responsible for more than 8.4
kilograms of crack was not supported by the evidence and that
Wayne Vick’s testimony, in particular, was “so vague and
inconclusive as to preclude any reliable estimate of the
quantity of crack he supplied to Baker from 2002 to 2007 or
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2008.” We conclude that Baker is correct that the evidence of
the amount of crack Wayne Vick supplied to her was inconsistent
and the inconsistency was not resolved by the district court,
with the result that the district court’s finding concerning the
drug amount was inadequate.
In the presentence report, based on Wayne Vick’s
written statement, the probation officer recommended that Wayne
Vick supplied Baker with two ounces of crack every two weeks in
2002, and four ounces of crack every two weeks from 2003 to
2008, for a total of 14.9 kilograms of crack. At trial, Wayne
Vick testified briefly that he started selling crack to Baker in
2002 and that he sold her one or two ounces every one or two or
three weeks. Wayne Vick said he sold to her for, “A couple
years. From ’02 through probably ’07, ’08,” and that the
amounts he sold her were not always the same. He said that,
“eventually it got to like four [ounces] on the end.” The
government did not inquire how long Wayne Vick sold four-ounce
quantities to Baker. However, the government represented that,
when Wayne Vick said “at the end,” he meant the entire last year
that he sold crack to Baker.
On appeal, the government has changed its calculation
again, and estimates in its brief that Wayne Vick sold Baker at
least 2.2 kilograms of crack. The government also suggests in
its brief a recalculation of the 2.4 kilograms of crack supplied
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by Malcolm Dowdy as stated in the presentence report, based on
information that he sold her two ounces of crack every two weeks
for twenty-two months. Dowdy’s sales to Baker were not
addressed at sentencing. * The government now suggests that Dowdy
sold Baker 5.4 kilograms of crack for twenty-four months based
on his trial testimony that he sold Baker two ounces of crack
every week from November 2002 to October 2003.
Using its current estimates of the amounts Wayne Vick
and Dowdy sold to Baker, which total 7.6 kilograms of crack, and
in light of additional testimony by James Vick, Shawn Barber,
and Michael Burrell, the government argues that the evidence
supported a finding that 8.4 kilograms of crack was properly
attributed to Baker. However, to avoid double counting, the
probation officer did not count crack sold by Barber, who
testified that Sabrina sometimes received crack from Baker, but
did not say either he or Sabrina sold crack to Baker. Also to
avoid double counting, the probation officer did not include
crack Burrell bought from Baker between 2006 and 2009, before he
became a confidential informant. Adding the 2.04 kilograms of
crack James Vick said he sold to Baker to the government’s
*
Baker objected to the 2.4 kilograms of crack Dowdy sold her
as reported in the presentence report, but did not challenge it
at sentencing. On appeal, Baker does not contest the 2.4
kilograms of crack attributed to her through Dowdy.
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current estimate would result in a total of 9.6 kilograms of
crack. However, this calculation was not presented to the
district court. When the resolution of a Guidelines issue
depends on a factual determination, the district court must make
that finding in the first instance. United States v. Davis, 679
F.3d 177, 183 (4th Cir. 2012).
Both Wayne Vick and Dowdy gave significantly different
information about the amount of crack they sold to Baker to the
probation officer and in their trial testimony. Because the
district court’s factual finding that Baker was responsible for
8.4 kilograms of crack is unsupported by reliable evidence, and
is thus clearly erroneous, we conclude that resentencing is
required for the district court to make new findings to
establish Baker’s base offense level.
Baker also challenges the enhancement for possession
of a firearm during the offense. A two-level increase is
authorized under USSG § 2D1.1(b)(1) if “a dangerous weapon
(including a firearm) was possessed” during the commission of
the offense of conviction, “unless it is clearly improbable that
the weapon was connected to the offense.” USSG § 2D1.1 & cmt.
n.11(A). “[P]ossession of the weapon during the commission of
the offense is all that is needed to invoke the enhancement.”
United States v. Harris, 128 F.3d 850, 852 (4th Cir. 1997). The
defendant has the burden of showing that a connection between
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his possession of a firearm and his drug offense is “clearly
improbable.” United States v. Slade, 631 F.3d 185, 189 (4th
Cir. 2011).
None of the government’s witnesses were asked at trial
whether they had seen Baker in possession of a firearm.
However, many of the same witnesses testified before the grand
jury that they had seen a firearm in Baker’s purse or in her
home. A preponderance of the evidence established that Baker
possessed a firearm during the conspiracy and she did not show
that it was clearly improbable that the gun was connected to the
offense.
Baker contends that the district court clearly erred
in finding that she was an organizer or leader in the offense.
The district court’s determination that a defendant is a leader
in the offense is a factual finding reviewed for clear error.
United States v. Cameron, 573 F.3d 179, 184 (4th Cir. 2009). A
defendant qualifies for a four-level adjustment if he or she
“was an organizer or leader of a criminal activity that involved
five or more participants or was otherwise extensive.” USSG
§ 3B1.1(a). A “participant” is “a person who is criminally
responsible for the commission of the offense,” whether or not
he has been convicted. USSG § 3B1.1 cmt. n.1. “Leadership over
only one other participant is sufficient as long as there is
some control exercised.” United States v. Rashwan, 328 F.3d
8160, 166 (4th Cir. 2003). In drug cases, customers who are
solely end users of drugs are not participants. United States
v. Egge, 223 F.3d 1128 (9th Cir. 2000); United States v. Baez-
Acuna, 54 F.3d 634, 639 (10th Cir. 1995).
Baker argues that there was no evidence that she
“planned or organized the drug trafficking of others or
exercised control and authority over others in the conspiracy.”
We agree. At sentencing, although the evidence established that
the conspiracy had more than five participants, there was no
compelling evidence that Baker directed or exercised control
over any of the participants. Initially, the presentence report
stated that Baker “directed the activities of multiple co-
conspirators,” specifically, Sabrina and Ken Allen (her brother
and sister), Timothy Warren, and her mother. When Baker
objected to the leader adjustment, the probation officer
responded that “Baker directed the activities of, at least,
Timothy Warren, and her mother, Barbara Allen[.]”
The district court decided that the conspiracy had
more than five participants; that Baker took “the larger share”
of the fruits of the crime; and that Warren “was getting paid by
her to be the doorman . . . to take care of the dogs, and to
just kind of be a handyman around her residence.” The court
found that Baker was “the one who participated in planning or
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organizing the offense. She was running the show.” The court
further found that:
[S]he did exercise control and authority over the
others. She would go and do the deals to get the
drugs from her suppliers and then had the operation
set up in her residence, set the price, direct those
who were handling the door for her, to the extent it
wasn’t her directly, in the exchange of money for the
crack.
With regard to Sabrina and Ken Allen, the evidence
showed only that they sold crack in the same vicinity as Baker,
and sometimes sold crack at her house, but not that they acted
at her direction or under her control. Rather, the evidence
appears to show that they all acted cooperatively. Barber
testified that Sabrina obtained her crack from either Michael
Williams or Baker, and sold crack at her own house and at
Baker’s house. Michael Burrell testified that he saw Sabrina
and Ken Allen at Baker’s house because she “let . . . certain
people come over to make money,” but that he did not like to buy
from them because they gave smaller amounts of crack for the
same amount of money.
As evidence that Baker directed the activity of
Timothy Warren, the probation officer reported that “Warren
testified before the grand jury regarding his knowledge of the
drug-trafficking activities of Wayne Vick, Beverly Baker, and
Ronnell Perry.” Warren also testified before the grand jury
10
that he bought crack from Baker by knocking at her door and that
either Baker or Sabrina would answer the door.
In addition, the probation officer noted that Michael
Burrell testified at trial that, during one his controlled
purchases of crack from Baker, he encountered Warren at her
door, gave his money to Warren, who passed it to Baker, who went
to the rear of her trailer, and shortly afterward Baker’s niece
brought the crack to Burrell. The probation officer further
noted that Shawn Barber testified at trial that “Warren was a
‘door man’ at Baker’s residence.” However, Joe Davis, one of
Baker’s regular customers, testified that, when he went to her
house, “different people” would answer the door, including
Baker, her brother or sister, and sometimes a child. He did not
mention Warren. Ronnell Perry, who lived with Baker, testified
at trial that Warren was a crack customer of Baker’s who did
“odds and ends” of work around her house and was paid in cash or
crack. There was no testimony or other evidence that
established that Warren was actually employed by Baker or
directed by her in any capacity relating to the offense.
Instead, the evidence showed that Warren was a crack user who
helped out around Baker’s house at times in order to obtain
crack or money for crack, and sometimes opened the door if he
was present when another customer arrived, but took no active
part in the conspiracy.
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After Baker was arrested, she called her mother,
Barbara Allen, from prison and asked her mother to collect $600
owed to her by Joe Davis. Davis testified that he paid Baker
whatever he owed her for crack when he received his disability
payment each month. After Baker’s arrest, he said he first
tried unsuccessfully to get in touch with Baker’s “people,” but
that ultimately Baker’s mother and brother came to his bank,
where he gave them the money he owed Baker. There was no
evidence that Baker’s mother had any other part in the
conspiracy. We conclude that this one recorded instance in
which she did something Baker asked her to do is insufficient to
qualify Baker for the four-level leader/organizer adjustment.
The trial evidence established that Baker involved her
niece, a minor, in her drug sales to a limited extent. However,
the two-level enhancement under § 2D1.1(b)(14)(B)(1) applies
only if the defendant also has an aggravating role in the
offense. Because the evidence did not establish that Baker had
such an aggravating role, the enhancement for use of minors was
incorrectly applied.
Last, Baker challenges the adjustment for obstruction
of justice. To impose a Guidelines adjustment for obstruction
of justice based on perjury, “the sentencing court must find
that the defendant (1) gave false testimony; (2) concerning a
material matter; (3) with willful intent to deceive.” United
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States v. Perez, 661 F.3d 189, 192 (4th Cir. 2011). This Court
held in Perez that, “[i]f a district court does not make a
specific finding as to each element of perjury, it must provide
a finding that clearly establishes each of the three elements.”
Perez, 661 F.3d at 193.
The district court found that Baker testified falsely
in 2009 before a grand jury that was investigating Michael
Williams’ drug trafficking. The court reviewed her statements
and found that each of them amounted to perjury and constituted
obstruction of justice. The grand jury proceedings are not in
the record on appeal, but Baker does not dispute that she
testified falsely that she had never seen Williams in possession
of cocaine or any illegal narcotics; said that Wayne Vick was
not in the drug business; said she had never received crack or
powder from Wayne Vick; and said she had never sold cocaine.
Baker contends that the district court’s findings were
inadequate because (1) the district court did not find that her
false statements were material to the investigation of her own
drug offense, and (2) failed to find that she had an intent to
deceive. However, Baker does not dispute that, when she
appeared before the grand jury, she was advised that the grand
jury was investigating narcotics violations, that she had been
named as being involved in the distribution of illegal
substances, that she could later be charged with a federal drug
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violation, that she was advised of her rights, including her
right not to incriminate herself, and that she was informed that
she was under oath and subject to the penalty of perjury. In
light of this uncontested information, although the district
court failed to make specific findings on each element of
perjury, we conclude that the court’s findings were adequate,
and that application of the adjustment was not clearly
erroneous.
We note that the district court stated that it would
impose the same life sentence as a variance if it had
miscalculated the Guidelines range, citing Savillon-Matute, 636
F.3d at 123 (holding that claimed procedural error in Guidelines
calculation is harmless if (1) the district court would have
imposed the same sentence even if it had decided the Guidelines
issue the other way, and (2) the sentence imposed is
reasonable). In this case, we cannot say that the life sentence
imposed by the district court is reasonable because, on the
record before us, Baker’s conduct was comparable to that of her
co-conspirators rather than more culpable. Although we express
no opinion as to the appropriate sentence, the district court
may wish to reconsider its previous conclusion that the
sentencing goals of 18 U.S.C. § 3553(a) (2006) require a life
sentence rather than a thirty-year sentence.
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For the reasons discussed, we vacate the sentence and
remand for resentencing in accord with this opinion. We deny
Baker’s motion for leave to file a pro se brief. 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.
VACATED AND REMANDED
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