United States v. Daniel G. Erlewine ( 1997 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 97-2320
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United States of America, *
*
Appellee, *
* Appeal from the United
States
v. * District Court for the
* District of Nebraska
Daniel G. Erlewine, *
* {UNPUBLISHED}
Appellant. *
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Submitted: October 1, 1997
Filed: October 16,
1997
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Before RICHARD S. ARNOLD, Chief Judge, and McMILLIAN and
BEAM,
Circuit Judges.
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PER CURIAM.
Daniel G. Erlewine appeals from the final judgment
entered in the District Court1 for the District of
Nebraska after he pleaded guilty to conspiring to
distribute and possess with intent to distribute cocaine,
in violation of 21 U.S.C. §§ 841(a) and 846. The
district court sentenced Erlewine to 360 months
1
The Honorable William G. Cambridge, Chief Judge, United States District
Court for the District of Nebraska.
imprisonment and 10 years supervised release. Erlewine
challenges his sentence, and we affirm.
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For reversal, Erlewine argues the district court
erred in applying a four-level role-in-the-offense
enhancement for being an organizer or leader of criminal
activity involving five or more participants, pursuant to
U.S. Sentencing Guidelines Manual § 3B1.1(a) (1995). At
sentencing, Erlewine argued he was just a dealer and did
not exercise control over any of his customers. A
government witness, however, testified that Erlewine had
received kilogram-sized quantities of cocaine, which he
divided for distribution to nine different people; that
Erlewine set the prices for the cocaine he supplied and
expected a fifty percent profit on each kilogram he sold;
and that the amount of cocaine Erlewine fronted depended
on how quickly his customers returned the sales proceeds.
Based on this testimony, we conclude that the
district court did not clearly err in determining
Erlewine was an organizer or leader pursuant to
Guidelines § 3B1.1(a). See United States v. Johnson, 47
F.3d 272, 277 (8th Cir. 1995) (standard of review; no
clear error in applying Guidelines § 3B1.1(a) enhancement
where defendant was, inter alia, instrumental in
receiving, paying for, and organizing for distribution
large quantities of cocaine); U.S. Sentencing Guidelines
Manual § 3B1.1(a) application note 4 (1995) (court should
consider, among other things, defendant&s decision-making
authority and degree of participation in planning
offense, whether defendant recruited accomplices, whether
defendant claimed greater profit from crime, and
defendant&s control and authority over others).
A true copy.
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Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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