United States v. Chambers ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5362
GEORGE CHAMBERS, a/k/a Dave,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 95-5363
ANNE MARIE CHAMBERS, a/k/a Sugar,
a/k/a Anne Marie Jack,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5364
PHILLIP CLARK, a/k/a Mark,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5496
TONY DYSON,
Defendant-Appellant.
Appeals from the United States District Court
for the Eastern District of Virginia, at Richmond.
Robert R. Merhige, Jr., Senior District Judge.
(CR-94-89)
Argued: March 8, 1996
Decided: September 10, 1996
Before ERVIN and NIEMEYER, Circuit Judges, and YOUNG,
Senior United States District Judge for the District of Maryland,
sitting by designation.
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Affirmed by unpublished opinion. Judge Ervin wrote the opinion, in
which Judge Niemeyer and Senior Judge Young joined.
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COUNSEL
ARGUED: Jeffrey Lee Everhart, Richmond, Virginia, for Appellant
George Chambers; Gregory William Franklin, Richmond, Virginia,
for Appellant Anne Chambers; Robert Patrick Geary, Richmond, Vir-
ginia, for Appellant Dyson; Elizabeth Dashiell Scher, MOR-
CHOWER, LUXTON & WHALEY, Richmond, Virginia, for
Appellant Clark. Joan Elizabeth Evans, Assistant United States Attor-
ney, Richmond, Virginia, for Appellee. ON BRIEF: Helen F. Fahey,
United States Attorney, Richmond, Virginia, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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2
OPINION
ERVIN, Circuit Judge:
I.
The appellants--George Chambers, his wife, Anne Marie Cham-
bers, Tony Dyson, and Philip Clark--were charged with various
offenses related to a crack distribution ring operating in the mostly
rural areas of Caroline, Spotsylvania, and Louisa Counties, Virginia.
The organization allegedly used couriers to smuggle shoplifted goods
into Jamaica and return with cocaine powder, which was cooked into
crack in New York and forwarded to the Eastern District of Virginia
for sale in crack houses. A jury convicted all four appellants of con-
spiring to possess with intent to distribute crack cocaine, in violation
of 21 U.S.C. § 846 and 19 U.S.C. §2. In addition, George Chambers
was convicted of two counts of possessing with intent to distribute in
excess of 50 grams of cocaine base, under 21 U.S.C.§§ 841(a)(1).
Anne Marie Chambers was convicted of one count of using a firearm
during a drug trafficking crime, under 18 U.S.C.§ 924(c)(1), and one
count of importing cocaine into the United States, under 21 U.S.C.
§ 952. Philip Clark was additionally convicted of possessing with
intent to distribute and distributing crack cocaine, in violation of 21
U.S.C. § 841(a)(1). The appellants challenge the sufficiency of the
evidence supporting their convictions, and raise various sentencing
issues. We affirm.
II.
All four appellants challenge the sufficiency of the evidence sup-
porting their conspiracy convictions1 on the ground that the govern-
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1 In Appellants' brief and at oral argument, Anne Marie Chambers also
challenged the sufficiency of the evidence supporting her conviction for
wilfully and intentionally using a firearm during and in relation to a drug
trafficking crime in violation of 18 U.S.C. § 924(c)(1). The charge
related to a nine millimeter pistol purchased from a pawn shop by Lora
Wright--a straw purchaser who used funds supplied by Chambers, and
who was later paid partly in drugs for her services. Chambers argued that
the government failed to carry its burden of showing that the weapon was
3
ment's evidence consisted exclusively of testimony by co-defendants
or accomplices. The appellants argue that the testimony was self-
interested and therefore unreliable, and contained inconsistencies. To
support a conviction, the evidence--when viewed in the light most
favorable to the government--must be sufficient for a rational trier of
fact to find the essential elements of the offense beyond a reasonable
doubt. United States v. Murphy, 35 F.3d 143, 148 (4th Cir. 1994),
cert. denied, 115 S. Ct. 954 (1995). Having carefully reviewed the
record, we are confident that the appellants had every opportunity to
challenge the inconsistencies, criminal histories, biases, and motiva-
tions of the government's witnesses during cross-examination and
argument. We find the substance of the eight government witnesses'
eyewitness testimony adequate to establish the appellants' guilt if the
jury found the evidence believable--which, apparently, it did. The
jury's decision on the credibility of witnesses is not reviewable by
this court. Trimed, Inc. v. Sherwood Medical Co. , 977 F.2d 885, 888
(4th Cir. 1992).
The appellants also contest the quantities of drugs attributed to
them by the district court during sentencing. At trial and at sentencing,2
the government submitted evidence that George Chambers cooked the
cocaine into crack "cookies"3 in New York, and that various couriers
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used during or in relation to a drug trafficking crime. See Smith v. United
States, 508 U.S. 223, 228 (1993). Chambers distinguished her case from
Smith, in which the Supreme Court held that an exchange of guns for
narcotics constituted "use" of a firearm under§ 924(c)(1). Id. at 237.
Rather, she argued, her payment of drugs to Wright was an exchange of
narcotics for a service rendered. Anne Marie Chambers later moved to
withdraw the appeal of her 18 U.S.C. § 924(c)(1) conviction, and on May
13, 1996, this court granted her motion.
2 Tony Dyson's sentencing hearing was continued and conducted sepa-
rately from the other appellants. At Dyson's hearing, the Government
presented evidence that Dyson began working for the ring toward the end
of September 1993 as a driver and runner. As a runner, Dyson would
take orders from and deliver drugs to numerous cars pulling up at crack
dealing locations operated by the conspiracy. The Government's evi-
dence tended to show that Dyson sold approximately one half ounce of
crack every week over the course of about three months.
3 At trial, witnesses explained that George Chambers would "cook"
cocaine powder into crack using a glass tea or coffee pot. The resulting
round piece of crack was called a "cookie."
4
transported an average of one or two cookies per week to Virginia.
The witnesses offered varying estimates of the value and size of the
drugs they handled or saw. Rose Mason described a cookie as about
three to four inches in diameter and about two inches thick. Tina
Anderson described a cookie as the diameter of a glass tea kettle, and
an inch to an inch-and-a-half thick. Lora Wright described a cookie
as about six inches in diameter and one-and-a-half to two inches
thick. She described the $100.00 rock of cocaine that she received in
payment as about the size of a twenty-five-cent piece. Detective
Laura Dawson testified that co-conspirator Shawn Chambers was
arrested in possession of about five ounces of crack, which he
described to be a half-cookie. The other half, he said, was transported
in a separate car by George and Anne Marie Chambers. Dawson testi-
fied that Shawn said that the Chambers brought one-and-a-half kilos
of cocaine from Jamaica every two weeks. Linda Mixon testified that
Anne Marie Chambers provided Philip Clark with $2,000-$2,500 in
crack to sell each week for about eleven weeks. A case agent testified
that one ounce of crack sold for about $1,000. Based on that evidence,
the court held each defendant responsible for five ounces of crack for
each week of their involvement in the conspiracy, amounting to 7.2
grams for Anne Marie Chambers, 623.7 grams for Phillip Clark,4 and
340 grams for Tony Dyson.5
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4 Phillip Clark also argues that the evidence does not support a finding
that he personally handled 623.7 grams of cocaine. The largest amount
attributed to him by government witnesses was $2,500 worth of crack
each week for eleven weeks, or about 275 grams. However, under the
Guidelines, the quantity to be attributed to a defendant in a conspiracy
case is "not limited to the amount he personally handled, but rather is
that amount that was reasonably foreseeable to him and in furtherance of
the conspiracy." United States v. D'Anjou, 16 F.3d 604, 614 (4th Cir.),
cert. denied, 114 S. Ct. 2754 (1994). Because Clark was described at trial
as one of the "main people" in the conspiracy, who not only distributed
the crack, but helped to cut and bag it, he potentially could be held
accountable for up to the total quantity of crack sold by the ring.
5 Tony Dyson also challenges the quantity of drugs for which he was
held responsible, on the basis that the witnesses who testified at his sen-
tencing were not credible. The credibility of witnesses is the domain of
the sentencing judge. See United States v. Falesbork, 5 F.3d 715, 721-22
(4th Cir. 1993).
5
The appellants contend that, because the witnesses never weighed
the crack cocaine "cookies," and were unable to give precise and con-
sistent evidence as to their size, the district court erred in holding
them responsible for any weight at all. We find no merit in this argu-
ment. In a case such as this, " ``[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.' " United States
v. D'Anjou, 16 F.3d 604, 614 (4th Cir.) (quoting U.S.S.G. § 2D1.1,
comment n.12), cert. denied, 114 S. Ct. 2754 (1994). The Guidelines
do not demand certainty and precision; they demand that a court do
the best that it can with the evidence in the record, erring on the side
of caution. See United States v. Cook, 76 F.3d 596, 604 (4th Cir.
1996); United States v. Uwaeme, 975 F.2d 1016, 1018-19 (4th Cir.
1992). We find that the district court did just that--it took a deliber-
ately cautious approach and made findings that were well-supported
by the record. Reviewing for clear error, United States v. Goff, 907
F.2d 1441, 1444 (4th Cir. 1990), we do not find any.
George Chambers challenges the enhancement of his sentence,
under U.S.S.G. § 2D1.1(B)(1), for possession of a firearm during the
conspiracy. The enhancement was improper, he contends, because it
was based upon one witness's uncorroborated testimony that she saw
him with a gun. We disagree. It is well-established in this circuit that
the testimony of a co-conspirator--"standing alone and
uncorroborated"--is enough to determine relevant conduct. United
States v. Burns, 990 F.2d 1426, 1439 (4th Cir.), cert. denied, 508 U.S.
967 (1993). In addition, we note that there was more in the record to
support the enhancement than simply one witness's statement. In a
signed statement admitted into evidence, another witness attested that
she delivered a box of soap powder from Virginia to George Cham-
bers in New York. Chambers opened the box, which contained a
black-colored handgun, then retaped the box and placed it in a barrel
for shipment to Jamaica. Still another witness testified that she trans-
ported five to ten guns from Virginia to the Chamberses' apartment
in New York. A court may properly impute to a defendant a co-
conspirator's use of a firearm. United States v. Moore, 29 F.3d 175,
178 (4th Cir. 1994); United States v. Falesbork , 5 F.3d 715, 720 (4th
Cir. 1993). We conclude that the district court's determination was
supported by the record and was not clearly erroneous.
6
George also argues that the enhancement was improper because it
led to an unfair, disproportionate result. While he was not charged
with using or possessing a firearm in a drug trafficking offense, his
two-level enhancement ratcheted his sentencing range up to a level
requiring mandatory life in prison. In contrast, Anne Marie Chambers
--who was actually convicted beyond a reasonable doubt of using or
possessing a firearm in a drug trafficking offense--received only an
additional five years on top of her underlying sentencing range of
thirty years to life. Thus, subject to the discretion of the sentencing
judge, Anne Marie could have received a minimum sentence of thirty-
five years. On the other hand, Mr. Chambers earned mandatory life
imprisonment based only on a preponderance of the evidence. We
recognize that, under the circumstances, the Guidelines have worked
a troublingly peculiar result, and that the issue may warrant the con-
sideration of the Sentencing Commission and Congress.6 Neverthe-
less, a sentencing court must apply the Guidelines as it finds them,
and a disparity in sentences amongst co-conspirators is not a proper
basis for a downward departure. United States v. Ellis, 975 F.2d 1061,
1066 (4th Cir. 1992), cert. denied, 507 U.S. 945 (1993). We find no
error.
George Chambers also challenges the four-level enhancement of
his sentence under U.S.S.G. § 3B1.1(a) for being an organizer, man-
ager, or otherwise extensively involved in the criminal activity. We
review the district court's determination of his role in the offense for
clear error. United States v. Hyppolite, 65 F.3d 1151, 1159 (4th Cir.
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6 That said, there is no reason to believe that the Sentencing Commis-
sion was not fully aware of the potential disparity between the penalties
under section 924(c) and under the Guideline enhancement scheme when
it designed a penalty system investing prosecutors with the discretion to
elect whether to charge under the separate substantive offense or to seek
an enhancement, depending on the strength of their cases. See United
States v. Foote, 898 F.2d 659, 666 (8th Cir.) ("The fact that the prosecu-
tor is empowered to choose between charging a violation of section
924(c) and merely seeking an enhancement of sentence based on his
evaluation of the strength of the case against the defendant does not in
any way violate the statutory goal of ``avoid[ing] unwarranted sentence
disparities.' 21 U.S.C. § 3553(a)(6)."), cert. denied sub nom. Thompson
v. United States, 498 U.S. 838 (1990), cert. denied sub nom. Williams v.
United States, 498 U.S. 938 (1990).
7
1995), cert. denied, 116 S. Ct. 1558 (1996). Chambers contends that
the government's evidence demonstrated only that he cooked, cut,
and bagged crack "on occasion," but did not demonstrate by a prepon-
derance of the evidence that he directed or controlled others. How-
ever, control over others is not the only characteristic supporting a
leader or organizer role enhancement. United States v. Harris, 39 F.3d
1262, 1270 (4th Cir. 1994). Application Note 4 of the Commentary
to § 3B1.1 instructs a court to consider
. . . the exercise of decision making authority, the nature of
participation in the commission of the offense, the recruit-
ment of accomplices, the claimed right to a larger share of
the fruits of the crime, the degree of participation in plan-
ning or organizing the offense, the nature and scope of the
illegal activity, and the degree of control and authority exer-
cised over others.
Based on those characteristics, the record readily supports Cham-
bers's role enhancement. The Government introduced testimony
showing that George Chambers not only cooked, cut, bagged, and
sold crack, he also played a leadership role in nearly every aspect of
the organization. The Government presented testimony that Chambers
paid crack house owners for the use of their houses as drug sale ven-
ues. In addition, it presented evidence tending to show that he met
couriers at the airport in New York and took them back to the Cham-
berses' apartment, where he supplied them with cocaine, and returned
them to the airport. There was evidence that he paid for at least one
courier's airline ticket. Similarly, witnesses testified that when other
couriers would arrive weekly or biweekly by bus at the Chambers'
apartment, George Chambers would leave and return with powder
cocaine, which he cooked into crack and sent back with the couriers
to Virginia. In addition, the evidence tended to show that Chambers
was responsible for handling the operation's finances. Witnesses testi-
fied that, on six or eight occasions, they transferred to him as much
as ten thousand dollars through Western Union. Other witnesses
described bringing proceeds to New York to give to George Cham-
bers. There was evidence that he and his wife Anne Marie Chambers
had discussions pertaining to financial aspects of the business.
Finally, the Government presented evidence that George Chambers
gave instructions to other conspirators. For example, one witness tes-
8
tified that he instructed her to buy a tea kettle for cooking crack, and
then paid her in drugs. Another witness testified that Chambers
instructed couriers on how to conceal drugs in car door panels for
transport. We conclude that the court's enhancement for role in the
offense was not clearly erroneous.
Finally, the appellants argue that the district court erred in refusing
to depart downward from the Guidelines on the basis of a Sentencing
Commission Special Report to Congress recommending elimination
of the 100-to-1 sentencing disparity between powder and crack cocaine.7
We repeatedly have upheld the sentencing disparity between crack
and powder cocaine. E.g., United States v. Fisher, 58 F.3d 96, 99-100
(4th Cir.), cert. denied, 116 S. Ct. 329 (1995). Our holding is not
affected by the Sentencing Commission's recommendation. United
States v. Hayden, 85 F.3d 153, 158 (4th Cir. 1996); United States v.
Anderson, 82 F.3d 436, 438 (D.C. Cir. 1996) (holding that the Com-
mission's Special Report does not give the district court the authority
to depart from established sentencing levels). Unless and until the law
changes, the district court is obligated to follow it. In the absence of
an incorrect application of the Guidelines or other violation of the
law, we cannot review a district court's discretionary refusal to depart
downward. United States v. Bayerle, 898 F.2d 28, 31 (4th Cir.), cert.
denied, 498 U.S. 819 (1990).
III.
In conclusion, we are not persuaded by the appellants' contentions
on appeal, and therefore affirm the judgments of the district court.
AFFIRMED
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7 We note that Congress eventually rejected the recommendation.
9