United States v. Foreman ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4694
CHARLIE LEE FOREMAN,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at New Bern.
Malcolm J. Howard, District Judge.
(CR-02-4-1)
Submitted: April 30, 2003
Decided: May 30, 2003
Before LUTTIG and TRAXLER, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
Lisa S. Costner, LISA S. COSTNER, P.A., Winston-Salem, North
Carolina, for Appellant. Frank D. Whitney, United States Attorney,
Anne M. Hayes, Assistant United States Attorney, Raleigh, North
Carolina, for Appellee.
2 UNITED STATES v. FOREMAN
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Charlie Lee Foreman appeals his convictions after a jury trial of
one narcotics conspiracy offense involving more than 100 grams of
heroin, and ten substantive heroin distribution offenses in violation of
21 U.S.C. §§ 841(a)(1), and 846 (2000). Foreman was sentenced to
a 480 month sentence on Count One, and a 240 month sentence on
Counts Two through Eleven, to run concurrently. On appeal, Fore-
man’s counsel has filed a formal brief raising three issues: (1) the dis-
trict court erred by denying Foreman’s motion to substitute counsel
and continue his trial; (2) the district court erred in calculating the
drug amounts attributable to Foreman at sentencing; and (3) the dis-
trict court erred in increasing Foreman’s guideline range by three
levels for being a manager or supervisor. Foreman has also filed a pro
se supplemental brief raising two additional issues: (1) the district
court erred in calculating his criminal history points under the U.S.
Sentencing Guidelines; and (2) the indictment was multiplicitous and
subjected him to double jeopardy. Finding no reversible error, we
affirm.
Foreman’s first argument on appeal is that the district court abused
its discretion in denying his request for substitution of counsel and
requiring him to proceed pro se at trial. This court reviews a district
court’s denial of a motion for substitution of counsel for an abuse of
discretion. United States v. Corporan-Cuevas, 35 F.3d 953, 956 (4th
Cir. 1994). A determination as to whether a defendant has waived his
right to counsel, however, is a question of law and is reviewed de
novo. United States v. Singleton, 107 F.3d 1091, 1097 n.3 (4th Cir.
1997). An indigent defendant has no right to a particular attorney, and
can demand another attorney only for good cause. United States v.
Gallop, 838 F.2d 105, 108 (4th Cir. 1988). Further, a defendant does
not have an absolute right to substitution of counsel. United States v.
Mullen, 32 F.3d 891, 895 (4th Cir. 1994). In evaluating whether the
UNITED STATES v. FOREMAN 3
trial court abused its discretion in denying Foreman’s motion for sub-
stitution of counsel, this court must consider: (1) the timeliness of the
motion; (2) the adequacy of the court’s inquiry into Foreman’s com-
plaint; and (3) "whether the attorney/client conflict was so great that
it had resulted in total lack of communication preventing an adequate
defense." Gallop, 838 F.2d at 108.
After a thorough review of the record, we conclude the district
court did not abuse its discretion in denying Foreman’s motion to sub-
stitute counsel. We further find that the district court did not err by
requiring Foreman to proceed pro se, because Foreman’s waiver of
his right to counsel was knowing and voluntary. United States v. Sin-
gleton, 107 F.3d 1091, 1095 (4th Cir. 1997) (holding a waiver of the
Sixth Amendment right to counsel must be voluntary, knowing, and
intelligent).
Foreman’s second issue on appeal is whether the district court
erred in calculating the drug amounts attributable to him at sentenc-
ing. The district court’s determination of the drug quantity attributable
to the defendant is a factual question reviewed for clear error. United
States v. Randall, 171 F.3d 195, 210 (4th Cir. 1999). At sentencing,
the government has the burden of proving the amount of drugs attrib-
utable to a defendant by a preponderance of the evidence. United
States v. Lipford, 203 F.3d 259, 272 (4th Cir. 2000).
In calculating drug amounts, the court may consider any relevant
information, provided that the information has sufficient indicia of
reliability to support its probable accuracy. United States v. Uwaeme,
975 F.2d 1016, 1021 (4th Cir. 1992). Even hearsay alone can provide
sufficiently reliable evidence of drug quantity. Id. at 1019. The sen-
tencing guidelines do not demand precision; they recognize that the
court often must approximate the amount of drugs, erring on the side
of caution. United States v. Cook, 76 F.3d 596, 604 (4th Cir. 1996).
After reviewing the record, we find that the trial court did not err in
its calculations.
Next, Foreman contends the district court erred in imposing a
three-level enhancement pursuant to U.S. Sentencing Guidelines Man-
ual § 3B1.1(b) for his role as a manager or supervisor. A district
court’s determination of the defendant’s role in the offense is a factual
4 UNITED STATES v. FOREMAN
finding that is reviewed for clear error. United States v. Perkins, 108
F.3d 512, 518 (4th Cir. 1997). Under USSG § 3B1.1(b), a three-level
enhancement is applied if the defendant was a manager or supervisor
(but not an organizer or leader) and the criminal activity involved five
or more participants or was otherwise extensive. In considering a
defendant’s role in the offense, courts may consider the degree of
control and authority exercised over others. USSG § 3B1.1, comment.
(n.4). "[T]he enhancement is justified if the defendant managed or
supervised the activities of at least one other person in a scheme that
involved five or more participants." United States v. Bartley, 230 F.3d
667, 673 (4th Cir. 2000). Based on the evidence presented at trial and
at sentencing, the district court found that Foreman’s operation was
at least extensive, and that the Government set out grounds to account
for Foreman’s management of at least five individuals. Based on the
foregoing, we conclude that the district court’s determination to apply
a three-level increase pursuant to §§ 3B1.1(b) was supported by the
record, and thus, not clearly erroneous.
Foreman’s next claim is that the district court miscalculated his
criminal history points and improperly categorized him as a career
offender by including offenses that were too old to be properly con-
sidered. Because Foreman raises this issue for the first time on appeal,
this court’s review is for plain error. United States v. Olano, 509 U.S.
725, 732 (1993). Our review of Foreman’s prior criminal convictions
supports the district court’s finding that Foreman qualifies as a career
offender under the guidelines. We further find that the district court
properly calculated Foreman’s criminal history category points.
Foreman’s final argument is that the indictment was multiplicitous
and subjected him to double jeopardy. Specifically, Foreman asserts
the indictment charged him with eleven conspiracy counts, although
his agreement to distribute heroin with the aid of Ronald Sharpe was
one continuous conspiracy. Because Foreman raises this issue for the
first time on appeal, this court’s review of this issue is also for plain
error. Id. Here, Foreman’s argument is clearly belied by the record.
A review of the indictment confirms that Foreman was charged with
a single drug trafficking conspiracy offense, and ten related substan-
tive drug trafficking offenses. We have previously recognized that the
Supreme Court has determined that conspiracies and the substantive
offenses committed in the course of those conspiracies are separate
UNITED STATES v. FOREMAN 5
offenses and may be charged separately. United States v. Love, 767
F.2d 1052, 1062 (4th Cir. 1985) (citations omitted). Therefore, we
reject Foreman’s contention that the indictment was multiplicitous.
Accordingly, we affirm Foreman’s convictions and sentences. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
AFFIRMED