United States v. Skyers ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 94-5081
DESMOND SAMUEL SKYERS, a/k/a Desi
Skyers, a/k/a Colin Green, a/k/a
Skip Skyers,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
W. Earl Britt, District Judge.
(CR-93-38)
Argued: January 29, 1996
Decided: March 13, 1996
Before MURNAGHAN, ERVIN, and WILKINS, Circuit Judges.
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Affirmed in part and vacated and remanded in part by unpublished
per curiam opinion.
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COUNSEL
ARGUED: Kevin Michael Schad, Cincinnati, Ohio, for Appellant.
John Douglas McCullough, Assistant United States Attorney,
Raleigh, North Carolina, for Appellee. ON BRIEF: Janice McKenzie
Cole, United States Attorney, Ted F. Mitchell, Third Year Law Stu-
dent, Raleigh, North Carolina, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Desmond Samuel Skyers appeals his convictions for conspiracy to
import and export cocaine, see 21 U.S.C.A.§ 963 (West Supp. 1995);
conspiracy to possess with the intent to distribute cocaine, see 21
U.S.C.A. § 846 (West Supp. 1995); and aiding and abetting the
importation of cocaine, see 18 U.S.C.A.§ 2 (West 1969); 21 U.S.C.A.
§ 952 (West 1981 & Supp. 1995), and his resulting life sentence.
Although we find no error warranting reversal of Skyers' convictions,
we remand for resentencing because the district court lacked a suffi-
cient basis for converting the entire amount of cocaine for which it
held Skyers accountable into cocaine base. Accordingly, we affirm
Skyers' convictions, but remand for resentencing.
I.
During Skyers' trial, the Government presented the testimony of
numerous coconspirators who had transported cocaine powder for
Skyers from Antigua to destinations within the United States, includ-
ing Miami, New York, Washington, D.C., and the Raleigh-Durham
area in North Carolina. These coconspirators testified concerning the
details of how Skyers and others participated in a conspiracy to
import cocaine powder obtained from Antiguan suppliers Wayne
Jagoo and Artland Lewis by recruiting and compensating couriers,
arranging their travel to and from Antigua, and furnishing money for
and securing the drugs after delivery into this country. Another
coconspirator testified that he was recruited by Skyers and distributed
cocaine base (crack) over a three-year period on behalf of the Skyers
organization from a house the witness owned in Washington, D.C.
Yet another witness testified concerning her activities in transporting
cocaine powder from Miami to England for Skyers.
2
At sentencing, the district court determined that Skyers should be
held accountable for 42 kilograms of cocaine base, rendering a base
offense level of 42. See United States Sentencing Commission,
Guidelines Manual, § 2D1.1(c)(1) (Nov. 1993).1 With a two-level
enhancement for possession of a firearm, see U.S.S.G. § 2D1.1(b)(1),
and a four-level enhancement for being the organizer of criminal
activity involving at least five participants, see U.S.S.G. § 3B1.1(a),
Skyers' adjusted offense level mandated a life sentence, see U.S.S.G.
Ch. 5, Pt. A.
II.
Skyers raises several challenges to his convictions, none of which
merits lengthy discussion.
He first contends that the evidence is insufficient to support his
conspiracy convictions. This argument is meritless. Viewed in the
light most favorable to the Government, there was ample evidence
from which a reasonable juror could have found Skyers guilty beyond
a reasonable doubt. See Glasser v. United States , 315 U.S. 60, 80
(1942).
Skyers next alleges that the district court improperly admitted, or
refused to strike, certain testimony. He claims that the district court
erred by permitting Agent McDonald to testify to inadmissible hear-
say, by refusing to strike the testimony of Wendy Moore as incredible
as a matter of law, and by allowing Agent Free to testify concerning
unexplained deposits to the bank account of Skyers' brother and
alleged coconspirator. We find no error. See United States v. Heater,
63 F.3d 311, 320-21 (4th Cir. 1995) (admission of testimony by dis-
trict court reviewed for abuse of discretion), cert. denied, 116 S. Ct.
796 (1996); United States v. Lindell, 881 F.2d 1313, 1322 (5th Cir.
1989) (testimony incredible as a matter of law only when it is "so
unbelievable on its face that it defies physical laws"), cert. denied,
493 U.S. 1087 and 496 U.S. 926 (1990). But, even if Skyers were
correct that the district court had incorrectly permitted this testimony,
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1 Section 2D1.1(c) has since been amended to reduce the highest base
offense level available under the Drug Quantity Table to level 38. See
U.S.S.G. § 2D1.1(c)(1) (Nov. 1994).
3
any error would be harmless. See United States v. Nyman, 649 F.2d
208, 211-12 (4th Cir. 1980) (nonconstitutional error is harmless if it
can be said with fair assurance that the error did not substantially
sway the judgment).
Finally, we reject Skyers' claim that the district court erred in fail-
ing to give two jury instructions relating to the credibility of cooperat-
ing codefendants. Although the district court did not charge the jury
in the exact words requested by Skyers, the instructions it gave were
essentially what he sought and correctly instructed the jury on its duty
to evaluate the credibility of the witnesses. See United States v.
Morgan, 942 F.2d 243, 247 (4th Cir. 1991).
III.
We find that Skyers' position with respect to his sentence has con-
siderably more merit. He argues that the district court committed clear
error in finding he was responsible for 42 kilograms of cocaine pow-
der, that it improperly adopted a 1:1 conversion ratio of cocaine pow-
der to cocaine base without supporting expert testimony, and that the
court lacked a proper basis for converting all of the cocaine powder
for which it had held him accountable into cocaine base and determin-
ing his offense level on the basis of the resulting quantity of cocaine
base.2
Skyers, however, acknowledged his responsibility for at least 15
kilograms of cocaine powder. And, he recognized that this court has
considered it appropriate for a district court to adopt an 88 percent
conversion ratio even without expert testimony. 3 See United States v.
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2 Congress chose to treat responsibility for cocaine base 100 times
more severely than culpability for an equal quantity of cocaine powder.
See 21 U.S.C.A. § 841(b) (West Supp. 1995). Because this approach was
incorporated into the guidelines, calculating a defendant's offense level
utilizing cocaine base produces a much higher offense level than does the
use of an identical quantity of cocaine powder. See U.S.S.G. § 2D1.1(c).
3 At oral argument, the Government admitted that no evidence suffi-
cient to sustain a 1:1 conversion ratio had been presented to the district
court and agreed that the use of an 88 percent conversion ratio would be
appropriate.
4
Ricco, 52 F.3d 58, 63 (4th Cir.), cert. denied, 116 S. Ct. 254 (1995).
Conversion of the 15 kilograms of cocaine powder for which Skyers
admitted responsibility at the 88 percent conversion ratio he concedes
is correct would result in the attribution of 13.2 kilograms of cocaine
base to him, a quantity of cocaine base sufficient to maintain his
adjusted offense level at offense level 43, the level on which his sen-
tence was based. See U.S.S.G. § 2D1.1(c); U.S.S.G. Ch. 5, Pt. A,
comment. (n.2) (offense level greater than 43 treated as offense level
43). Accordingly, any error by the district court with respect either to
the quantity of cocaine powder for which Skyers was responsible or
to the use of a 1:1 conversion ratio without expert testimony is harm-
less. See Williams v. United States, 503 U.S. 193, 202-03 (1992).
The principal question presented to this court, then, is whether the
decision of the district court to convert the cocaine powder into
cocaine base was proper. Even when a defendant is convicted of a
conspiracy to possess or to distribute cocaine, a sentencing court
properly may convert cocaine powder to cocaine base for purposes of
determining the defendant's offense level if, for example, the court
finds that the object of the conspiracy was to distribute cocaine base
or that it was reasonably foreseeable that the cocaine would be dis-
tributed as cocaine base. See United States v. McMurray, 34 F.3d
1405, 1414-15 (8th Cir. 1994), cert. denied, 115 S. Ct. 1164 (1995).
The Government maintains that the district court was justified in
converting all of the cocaine powder into cocaine base. It contends
that, although it was undisputed that Skyers imported only cocaine
powder into this country from Antigua and exported only cocaine
powder to London, the conversion was proper because the only evi-
dence presented concerning the subsequent distribution of the cocaine
Skyers smuggled into this country demonstrated that some portion of
it was converted into cocaine base and sold from a house in Washing-
ton, D.C. This evidence, the Government claims, supports a conclu-
sion that Skyers intended to convert all of the cocaine powder into
cocaine base or that he reasonably foresaw that it would be. The Gov-
ernment also asserts that the majority of Skyers' couriers were
addicted to and sometimes were paid in cocaine base. Finally, it notes
that approximately six ounces of cocaine base--that allegedly
belonged to Skyers--were seized in a search of the home of one of
Skyers' coconspirators.
5
This, standing alone, is insufficient to justify conversion of all of
the cocaine powder Skyers imported into this country to cocaine base.
Cf. United States v. Uwaeme, 975 F.2d 1016, 1021 (4th Cir. 1992)
(factual finding at sentencing is not clearly erroneous when "based on
evidence possessing sufficient indicia of reliability to support its
probable accuracy"). The only evidence to which the Government
points that arguably could support a conclusion that Skyers intended
or foresaw the conversion of 42 kilograms of cocaine powder into
cocaine base is the evidence surrounding distribution of cocaine base
from the house in Washington, D.C. However, the Government con-
ceded at oral argument that the evidence before the district court was
inadequate to permit any reasoned finding concerning the quantity of
cocaine base distributed from this house. Accordingly, we cannot say
that this evidence is sufficient to support a conclusion that all of the
cocaine powder for which Skyers was held accountable should be
converted into cocaine base.
Further, we are unable to conclude that this error is harmless. See
Williams, 503 U.S. at 202-03. If Skyers' offense level had been calcu-
lated using cocaine powder rather than cocaine base, his adjusted
offense level and resulting guideline range would have been lower.
And, as the Government has conceded, the present record will not
support a determination that Skyers should be held accountable for
any quantifiable amount of cocaine base.4 Consequently, we conclude
that a remand is necessary to allow the parties to present evidence and
otherwise address the issue of what amount, if any, of cocaine base
may properly be used in determining Skyers' offense level.
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4 The attribution of as little as 1.5 kilograms of cocaine base would
result in Skyers receiving the same sentence--an attribution that would
require a finding that Skyers intended or foresaw the conversion of only
approximately 1.71 kilograms of the 42 kilograms of cocaine for which
he was held accountable. The Government asserted at oral argument that
if permitted the opportunity to do so, it could show that the quantity of
cocaine base distributed through the Washington, D.C. house was suffi-
cient to support conversion of this quantity. Perhaps so, but we cannot
affirm the finding of the district court on the basis of evidence that may
be presented on remand.
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IV.
For the foregoing reasons, we affirm Skyers' convictions, but
remand for resentencing.
AFFIRMED IN PART; VACATED AND REMANDED IN PART
7