United States v. Owen , 27 F. App'x 218 ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 01-4539
HARRY CARLOS OWEN, a/k/a
Bushwacker,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of West Virginia, at Beckley.
David A. Faber, District Judge.
(CR-00-185)
Submitted: November 28, 2001
Decided: December 18, 2001
Before WIDENER and MOTZ, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
Matthew A. Victor, VICTOR, VICTOR & HELGOE, L.L.P.,
Charleston, West Virginia, for Appellant. Charles T. Miller, United
States Attorney, Monica K. Schwartz, Assistant United States Attor-
ney, Charleston, West Virginia, for Appellee.
2 UNITED STATES v. OWEN
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Harry Carlos Owen appeals his jury convictions for conspiracy to
distribute 1000 kilograms of marijuana, in violation of 21 U.S.C.
§§ 841(a)(1), 846 (1994) and using a telephone to facilitate the con-
spiracy, in violation of 21 U.S.C. § 843(b) (1994). Finding no error,
we affirm.
Owen first asserts the district court abused its discretion in denying
his motions to dismiss Count One of the Indictment and to strike ref-
erences to individuals "known and unknown to the Grand Jury." We
find no abuse of discretion.
Federal Rule of Criminal Procedure 7(c)(1) requires an indictment
to be a plain, concise and definite written statement of the essential
facts constituting the offense charged. The subject indictment tracked
the statutory language and cited the charging statute. As a general
rule, this is sufficient. See Hamling v. United States, 418 U.S. 87, 117
(1974); United States v. Fogel, 901 F.2d 23 (4th Cir. 1990). The
indictment alleged each element of the crime charged, where the
crime was committed, and over what period of time the crime
occurred. The indictment’s reference to "known and unknown" co-
conspirators does not render it invalid. United States v. American
Waste Fibers Co., 809 F.2d 1044, 1046 (4th Cir. 1987).
Owen next contends there was insufficient evidence to convict him.
This Court reviews a jury’s verdict for sufficiency of the evidence by
determining whether there is substantial evidence, when viewed in a
light most favorable to the government, to support the verdict.
Glasser v. United States, 315 U.S. 60, 80 (1942). Owen’s co-
conspirators testified that they bought, sold, and transported large
amounts of marijuana for Owen over several years. Several police
officers and investigators testified as to the amount of marijuana
UNITED STATES v. OWEN 3
bought and sold by Owen and his co-conspirators. In addition, several
of Owen’s co-conspirators testified that they organized drug deals
over the phone with Owen. We find there was sufficient evidence to
support the jury’s verdict.
Owen further contends the district court clearly erred in determin-
ing the drug quantity for which he was responsible, see United States
Sentencing Guidelines Manual § 2D1.1(a)(3) (2000); in imposing a
two-level weapon enhancement, see USSG § 2D1.1(b)(1); a two-level
role adjustment, see USSG §3B1.1(c); and a two-level use of a minor
adjustment, see USSG § 3B1.4.
The district court’s determination of the drug quantity attributable
to a defendant is a factual finding reviewed for clear error. United
States v. Randall, 171 F.3d 195, 210 (4th Cir. 1999). A conspiracy
sentence under the guidelines must be calculated on the basis of all
criminal activity undertaken in concert with others, including conduct
of others in furtherance of the conspiracy that was known to Owen
or reasonably foreseeable by him. See United States v. Williams, 986
F.2d 86, 90 (4th Cir. 1993).
Owen objected to the drug amounts to the extent they were based
upon the allegedly unreliable testimony of several of his co-
conspirators. The court specifically found their testimony to be credi-
ble. The credibility of a witness is a matter within the discretion of
the fact finder and is generally not subject to appellate review. United
States v. Saunders, 886 F.2d 56, 60 (4th Cir. 1989). The testimony
established Owen was involved with at least 1000 kilograms of mari-
juana. Therefore, we find no clear error.
Owen next contends the district court erred by enhancing his sen-
tence under USSG § 3B1.1 for being a leader or organizer of criminal
activity. We review this claim for clear error. United States v.
Daughtrey, 874 F.2d 213, 217 (4th Cir. 1989).
The four-level enhancement was proper if Owen "was an organizer
or leader of a criminal activity that involved five or more participants
or was otherwise extensive." USSG § 3B1.1(a). The district court
found that Owen directed the activities involving drugs for resale of
at least nine persons. We conclude the evidence supports the district
4 UNITED STATES v. OWEN
court’s finding that Owen was a leader or organizer of this extensive
drug distribution activity. Therefore, we find no clear error in the
four-level enhancement.
Owen next contends the district court erred in applying a two-level
enhancement under USSG § 2D1.1(b)(1) for possessing a firearm dur-
ing the commission of the offense. Owen argues there was no evi-
dence he used the firearm in a drug-related activity. The
determination that a weapon enhancement is warranted is a factual
question subject to clearly erroneous review. United States v. Apple,
915 F.2d 899, 914 (4th Cir. 1990). The evidence contained in the pre-
sentence report and presented at the sentencing hearing demonstrated
that Owen kept several guns around his home to protect his large mar-
ijuana supply. This evidence was sufficient to satisfy the govern-
ment’s burden of proving that Owen possessed a firearm and the
firearm’s probable connection to the drug offense. See USSG
§ 2D1.1, comment. (n.3) (explaining that firearm enhancement should
be applied if weapon is present "unless it is clearly improbable that
the weapon was connected with the offense."). We therefore find that
the district court did not clearly err in imposing the enhancement.
Owen next contends the district court erred in applying a two-level
enhancement under USSG § 3B1.4 for using a minor to commit the
offense. We review this claim for clear error. Daughtrey, 874 F.2d at
217. The district court credited the testimony of Owen’s son that he
was involved in the drug conspiracy since he was sixteen years of
age. Because the credibility of a witness is a matter within the discre-
tion of the fact finder and is generally not subject to appellate review,
Saunders, 886 F.2d at 60, we find the district court did not clearly err
in applying a two-level enhancement for use of a minor.
For these reasons, we affirm Owen’s conviction and sentence. 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