United States v. Osborne ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 96-4167
NATHANIEL JEROME OSBORNE, a/k/a
Rome,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Henry C. Morgan, Jr., District Judge.
(CR-95-139-N)
Submitted: September 24, 1996
Decided: October 23, 1996
Before WILKINS, LUTTIG, and WILLIAMS, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Jon M. Babineau, DOYLE & BABINEAU, Norfolk, Virginia, for
Appellant. Helen F. Fahey, United States Attorney, Laura Pellatiro
Tayman, Assistant United States Attorney, Norfolk, Virginia, for
Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Nathaniel Jerome Osborne appeals from his jury convictions of one
count of conspiracy to distribute cocaine base, in violation of 21
U.S.C.A. § 846 (West Supp. 1996), and two counts of distribution of
cocaine base, in violation of 21 U.S.C. § 841(a)(1) (1994). We affirm.
I.
Osborne first contends that the evidence at trial was insufficient to
support the conspiracy count. To prove conspiracy to distribute
cocaine base, "the Government must establish that: (1) an agreement
to possess cocaine with intent to distribute existed between two or
more persons; (2) the defendant knew of the conspiracy; and (3) the
defendant knowingly and voluntarily became a part of this conspir-
acy." United States v. Burgos, 94 F.3d 849, 857 (4th Cir. 1996). In
Glasser v. United States, the Supreme Court explained that a jury ver-
dict "must be sustained if there is substantial evidence, taking the
view most favorable to the Government, to support it." 315 U.S. 60,
80 (1942). Further, we assess the evidence in the light most favorable
to the Government. Burgos, 94 F.3d at 863.
Viewed in the light most favorable to the Government, the evi-
dence at trial showed that Agent Dennis White, from the Drug
Enforcement Agency Task Force ("DEA"), utilized one Alex Polite
as an informant to arrange drug sales with Osborne. On March 6 and
March 14, 1995, Agent White bought cocaine base directly from
Osborne at a Wendy's restaurant in Norfolk, Virginia. In arranging
the March 14 sale, Polite spoke with Gregory Kinsey, an associate of
Osborne's, who agreed to the sale terms on Osborne's behalf. While
in Wendy's on March 14, Osborne gave Agent White his skypager
number, which was an 800 number permitting nationwide contact.
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On August 15, Osborne met White at the same Wendy's, ostensibly
to sell him nine ounces of cocaine base. Osborne arrived at Wendy's
in an automobile driven by William Daniels. Stanley Locus was sit-
ting in the back seat. Osborne introduced Daniels and Locus to Agent
White as his "partners." Osborne, Daniels, and Locus were then
arrested. DEA agents recovered a revolver from the back seat of the
car and 348 grams of imitation crack cocaine from the front seat. We
hold that in construing this evidence in the light most favorable to the
government and drawing all reasonable inferences therefrom, a ratio-
nal jury could have found Osborne guilty of conspiracy to distribute
cocaine base.
II.
Osborne next contends that the evidence at trial was insufficient to
support the distribution counts. For support, Osborne argues that the
Government induced him to sell Agent White cocaine base. However,
at trial, Osborne did not raise an entrapment defense. In fact, he
denied that he ever sold drugs. By stating that he was induced,
Osborne now admits that the drug sales took place. His contention
that inadequate evidence supported the jury's verdict is frivolous.
III.
Osborne also asserts that the district court erred in increasing his
base offense level by two pursuant to United States Sentencing Com-
mission, Guidelines Manual, § 3B1.1(c) (Nov. 1995), for a manage-
rial role in the crime. Factual disputes concerning adjustments under
the guidelines should be resolved by a preponderance of the evidence.
United States v. Urrego-Linares, 879 F.2d 1234, 1239 (4th Cir.), cert.
denied, 493 U.S. 943 (1989). A district court's findings of fact con-
cerning role adjustments must be affirmed unless clearly erroneous.
United States v. Smith, 914 F.2d 565, 569 (4th Cir. 1990), cert.
denied, 498 U.S. 1101 (1991). At trial, Polite testified that Locus sold
cocaine for Osborne. Kinsey, on at least one occasion, arranged a sale
on Osborne's behalf. In addition, Osborne arrived at what was to be
a scheduled sale with two accomplices. Aside from his own blanket
denials of involvement with drugs, Osborne did not offer any evi-
dence to contradict this testimony. Thus, the district court did not err
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in finding by a preponderance of the evidence that Osborne acted as
a manager.
IV.
Osborne asserts that the district court erred in applying a two-level
enhancement pursuant to U.S.S.G. § 2D1.1(b)(1), for possession of a
firearm during a drug offense. Osborne argues that the gun was only
present during the last meeting with Agent White, and Osborne was
not convicted of a drug offense for that meeting. Furthermore, only
imitation cocaine base was recovered from the car, so no "drug"
offense occurred that day. In addition, Osborne asserts that he did not
know there was a gun in the car.
However, Osborne was convicted of conspiracy to distribute
cocaine base. Therefore, even though he was not convicted of the
August 15 "sale," the enhancement should be applied where the
weapon was possessed in the furtherance of the conspiracy. See
United States v. Kimberlin, 18 F.3d 1156, 1159-60 (4th Cir.), cert.
denied, 114 S. Ct. 1857 (1994). Moreover, a defendant "possesses" a
firearm for purposes of U.S.S.G. § 2D1.1(b)(1) if the weapon was
merely "``present, unless it is clearly improbable that the weapon was
connected with the offense.'" United States v. Hunter, 19 F.3d 895,
896 (4th Cir. 1994) (enhancement affirmed where defendant could
reasonably have foreseen that firearm would be present during drug
transaction) (quoting U.S.S.G. § 2D1.1, comment. (n.3)).
Here, the firearm was present in the car with Osborne, his co-
conspirators and imitation cocaine base, as they drove to a scheduled
drug sale. In the past, Osborne and his co-conspirators had sold genu-
ine cocaine base to the same customer. Based on this evidence, we
find that it was reasonably foreseeable to Osborne that a firearm
would be present. Further, we hold that the district court's finding that
the August 15 meeting was in furtherance of the conspiracy was not
clearly erroneous.
V.
Finally, Osborne challenges the district court's two-level enhance-
ment for obstruction of justice. An adjustment under U.S.S.G.
4
§ 3C1.1 may be given if the district court finds that the defendant
committed perjury in his trial testimony. See United States v.
Dunnigan, 507 U.S. 87, 96-97 (1993) (defendant's right to testify
does not include a right to commit perjury). The district court adopted
the presentence report finding that Osborne lied about not having a
pager in March 1995. In addition, Osborne's testimony that he had
never seen drugs and never sold them was contradicted by numerous
witnesses. This evidence was more than sufficient to support the dis-
trict court's finding that Osborne intentionally gave false testimony.
See United States v. Castner, 50 F.3d 1267, 1279 (4th Cir. 1995).
VI.
Accordingly, we affirm Osborne's convictions and the sentence
imposed by the district court. We dispense with oral argument,
because the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the decisional
process.
AFFIRMED
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