United States v. Johnson ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5448
EGUARDO JOHNSON,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Fayetteville.
Malcolm J. Howard, District Judge.
(CR-94-34-H)
Submitted: January 11, 1996
Decided: February 2, 1996
Before RUSSELL, HALL, and WILKINSON, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
Carl G. Ivarsson, Jr., COOK & IVARSSON, Fayetteville, North Car-
olina, for Appellant. Janice McKenzie Cole, United States Attorney,
Christine Witcover Dean, Assistant United States Attorney, Raleigh,
North Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Eguardo Johnson was convicted by a jury of conspiracy to distrib-
ute crack cocaine, 21 U.S.C.A. § 846 (West Supp. 1995), and of dis-
tribution of crack cocaine, 21 U.S.C.A. § 841 (West 1981 & Supp.
1995). He appeals his 360-month sentence, alleging that the district
court clearly erred in finding that he was an organizer or leader in an
offense which involved five or more participants or was otherwise
extensive. United States Sentencing Commission, Guidelines Manual,
§ 3B1.1(a) (Nov. 1994). We affirm.
At Johnson's trial, his co-defendant, John Elton Russell, testified
that he met Johnson when he was fifteen years old; both of them were
working at a crack house in Fayetteville, North Carolina. Johnson was
five years older than Russell and a Jamaican citizen. He had come
from New York to help run the crack house at the request of the
owner. In 1990, Johnson and Russell began selling crack together in
nearby Lumberton, North Carolina, where there was less competition.
At first, they sold crack from Margaret Leggett's house. When it was
raided, they moved to James Marrant's house. Marrant was paid in
cocaine for the use of his house. After Marrant's house was also
raided, Johnson and Russell sold crack from an open air site near a
housing project.
By 1993 Johnson and Russell were selling larger amounts to lower-
level drug dealers in Lumberton. According to undisputed informa-
tion in the presentence report, Johnson handled the larger deals. They
traveled to New York every two months or so to obtain three or four
kilograms of cocaine which they cooked into crack and packaged in
Fayetteville. Each day they took a one-day supply of crack to Lum-
berton. If they sold out during the day, they might return to Fayette-
ville to restock. Because neither Johnson nor Russell had a driver's
license, several of their customers, including Eric Stevens and James
LeSane, were paid in money or drugs to drive them between Fayette-
ville and Lumberton. Malik Jones drove them to New York and back.
Stevens also arranged for rental cars. Crack was fronted to at least
two customers in Lumberton--Eric Stevens and Farrell Gilchrist.
2
We review the district court's factual finding that Johnson was an
organizer or leader under the clearly erroneous standard. United
States v. Harriott, 976 F.2d 198, 202 (4th Cir. 1992). Johnson first
contends that the four-level adjustment he received under § 4B1.1(a)
was clearly erroneous because he had only a buyer/seller relationship
with his customers and that, as a result, the offense did not involve
five participants. We have no difficulty in finding that the offense
involved more than five participants. A participant is a person who is
criminally responsible for the offense; he need not have been con-
victed. USSG § 3B1.1, comment. (n.1). Under this definition, the
defendant, Russell, Leggett, Marrant, Jones, Stevens, LeSane, and
Gilchrist were all participants. We note also that fronting drugs to a
customer is evidence of an ongoing relationship indicating an agree-
ment to distribute drugs rather than a simple buyer/seller relationship.
United States v. Mills, 995 F.2d 480, 485 n.1 (4th Cir.), cert. denied,
___ U.S. ___, 62 U.S.L.W. 3252 (U.S. Oct. 4, 1993) (No. 93-5765).
Second, Johnson asserts that he did not exercise leadership or con-
trol over anyone. However, Johnson planned and organized the
offense. He had contacts in New York which allowed him to arrange
the purchases of cocaine and to hire Malik Jones as a driver. Johnson
also hired James LaSane and Eric Stevens to drive him to Fayetteville
and back and had Stevens rent cars for his use. These facts were suffi-
cient to justify the enhancement.
Accordingly, we affirm the sentence imposed by the district court.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
3