United States v. Martin Thomas Lawrence , 918 F.2d 68 ( 1990 )

ARNOLD, Circuit Judge.

This is a direct appeal of a sentence imposed in a drug conspiracy case. On September 21, 1988, Martin Thomas Lawrence pleaded guilty to conspiring to distribute, and to possessing with the intent to distribute, marijuana and 500 grams or more of cocaine, in violation of 21 U.S.C. § 846. The conspiracy covered a five-year period from 1983 to the spring of 1988. Before the guilty plea, Lawrence entered into an agreement with the government obligating him to cooperate in other narcotics investigations, as well as to provide truthful information concerning the extent of the conspiracy with which he was charged. Nearly a year after his plea was entered, Lawrence was sentenced by the District Court¹ to 262 months of imprisonment, four years of supervised release, and a $50 special assessment.

Lawrence challenges each step of the calculation of his sentence under the Sentencing Guidelines. First, the District Court determined that Lawrence had been involved in trafficking in the equivalent of 5 to 14.9 kilograms of cocaine. This amount yields a base offense level of 32. Second, Lawrence was assessed three points for acting as a “manager or supervisor” in the drug-distribution conspiracy. Third, the District Court added two points for obstruction of justice. The resulting total offense level of 37, and a Criminal History Category of III, placed Lawrence in the range of 262 to 327 months in custody. Lawrence was sentenced to the minimum time period in this range. We affirm.

I.

The Presentence Report listed some twenty-five different transactions in illicit drugs allegedly associated with Lawrence during the conspiracy. The Report stated that the total amount of drugs attributable to Lawrence was the equivalent of 7.57 kilos of cocaine (or a heroin equivalency of 1,514 grams). At sentencing, Lawrence objected to most of the amounts- used to calculate his base offense level. The District Court, however, found that sufficient evidence existed to support the probation officer’s conclusion that Lawrence was involved with 5 to 14.9 kilos of cocaine.² Tr. 124. On this appeal, Lawrence claims error in the inclusion of the drugs in ten of the transactions.³

We begin our review with the largest of these ten transactions. Paragraph 11 of the Presentence Report related an incident in 1985 when Lawrence accompanied Mark Stearns on a trip to Chicago. There Stearns purchased two kilos of cocaine. Stearns kept the cocaine upon their return to Cedar Rapids. Lawrence testified that he did not know the purpose of the trip at the outset, nor did he receive any of this cocaine or otherwise profit from it. Tr. 76-77. Lawrence claims the government offered insufficient proof that he knowingly accompanied Stearns to Chicago to purchase cocaine.

We think there was sufficient evidence for the District Court to conclude that at some point during the trip, Lawrence knew that he and Stearns were in possession of two kilograms of cocaine. Stearns testified at the sentencing proceeding that he could not recall whether Lawrence knew the reason for going to Chicago, but that part of the time Lawrence carried the leather pouch which Lawrence knew contained cocaine. Tr. 50-52. Lawrence himself admitted that he knew Stearns had purchased cocaine while they were in Chicago. Tr. 76-77. Andy Falco testified that Lawrence later told him about walking around Chicago with “three kilos of cocaine.” Tr. 38. Lawrence had previously dealt in illicit drugs with Stearns. Lawrence is accountable for those drug transactions handled by Stearns which he knew about or could reasonably foresee, regardless of whether he knew beforehand that the trip to Chicago was for the purpose of buying cocaine. See U.S. S.G. § 1B1.3, Application Note 1. Therefore, the two kilos of cocaine from this incident were properly included in the calculation of Lawrence’s base offense level.

We next consider whether 481.95 grams of cocaine from drug dealings in the fall of 1987 were properly assessed against Lawrence. Paragraph 13 of the Presentence Report attributes to Lawrence several amounts of cocaine sold to Scott Nischwitz by Stearns. Lawrence denies that he set up any of these transactions or requested that Stearns sell cocaine to Nischwitz. Stearns testified, however, and Lawrence admitted, that Stearns promised Lawrence a $3,000 credit against a debt he owed Stearns for one nine-ounce sale to Nischwitz. Tr. 55, 73. Lawrence also admitted knowledge of other sales to Nis-chwitz totalling at least four, but possibly as much as twelve, ounces of cocaine. (The probation officer who prepared the report suggested a “middle figure” of eight ounces for these other transactions, accounting for the 481.95 grams (17 ounces) listed in paragraph 13.) We think the fact that Lawrence profited from one of the transactions, and knew about the others, is sufficient to show a conspiratorial involvement.

Because we hold that these amounts of cocaine — the two kilos from the Chicago trip and the 481.95 grams sold by Stearns to Nischwitz — were properly included in calculating Lawrence’s base offense level, it is unnecessary for us to consider the other eight transactions as to which Lawrence assigns error. Excluding the total amount of drugs from these eight transactions would not change the base offense level of 32, since the total amount attributed to Lawrence would still fall within the 5 to 14.9 kilo range.⁴ Moreover, because Lawrence received the minimum sentence in the sentencing range available to the District Court, he cannot argue persuasively that exclusion of these eight transactions would have made any difference in the sentence he received.

II.

Next Lawrence challenges a three-point assessment for his role as a “manager or supervisor” in the drug conspiracy, based upon U.S.S.G. § 3Bl.l(b). Lawrence did not object at sentencing to this three-point assessment, and so the issue is not properly preserved for appeal. But had the District Court considered the question, we think there was sufficient evidence for it to conclude that Lawrence acted as a manager of the many drug transactions over the course of the conspiracy. As the Report stated, Lawrence “procured drugs, stored them, sold them to more than several other people and paid his suppliers.” Report, U 42. To be a manager, a defendant in a drug conspiracy need not control or manage the activities of the co-conspirators — it is sufficient that the facts show that the defendant managed the criminal activity. See United States v. Johnson, 906 F.2d 1285 (8th Cir.1990). In this case, Lawrence managed and profited from extensive drug dealings with several persons over a period of five years.

III.

Finally, Lawrence appeals the District Court’s decision to deny him a two-level reduction for acceptance of responsibility, U.S.S.G. § 3E1.1, and assess a two-level penalty for obstruction of justice, U.S.S.G. § 3C1.1. Lawrence did not ask the Court for an adjustment for acceptance of responsibility, nor did he object at sentencing to the probation officer’s recommendation that the adjustment be denied. Thus, Lawrence cannot raise this issue now.

The government proved that, after he entered his guilty plea, Lawrence lied on several occasions concerning the extent of his past drug dealings, not only to investigators but also to the probation officer assigned to his case. Not only did Lawrence thereby break a term of his plea agreement with the government, a ground sufficient to deny credit for acceptance of responsibility, but his deception also qualified for an upward adjustment for obstructing justice under U.S.S.G. § 3C1.1. Application Note 1(e) states that “furnishing material falsehoods to a probation officer in the course of a presentence or other investigation for the court” is another ground that may provide the basis for applying the adjustment. Further, Application Note 1(c) includes “testifying untruthfully ... during a ... sentencing proceeding, or any other judicial proceeding” among the conduct that may constitute obstruction of justice. The Court noted that Lawrence had provided “diametrically opposed testimony” to investigating officers, the probation officer, and even at the sen-fencing proceeding. Tr. 130-31. We think the two-level enhancement was appropriate here.

Lawrence contends that he was punished for his failure to confess the full extent of his drug involvement, a violation of his Fifth Amendment right not to incriminate himself. See, e.g., United States v. Watt, 910 F.2d 587 (9th Cir.1990) (refusal to grant acceptance-of-responsibility reduction may not be based on constitutionally protected conduct, such as refusing to make any statement to the police or to assist them in gathering inculpatory evidence). But Lawrence was punished not for failure to confess fully the amount of drugs with which he was associated, but for lying during the investigation and sentencing proceedings. Lawrence voluntarily agreed to reveal to the government all of his past drug dealings. He then changed his story several times. As a result, an amended Presentence Report had to be prepared. Any Fifth Amendment right not to reveal the full extent of his criminal activity was waived when Lawrence entered the plea agreement, as well as each time thereafter when he volunteered different information.

Accordingly, the sentence of the District Court is affirmed.

1 . The Hon. David R. Hansen, United States District Judge for the Northern District of Iowa.

2 . The District Court reduced the 36 pounds of marijuana in paragraph 14 of the Report to 10 pounds. Tr. 119. The Court also found insufficient evidence to support the 907 grams of marijuana in paragraph 29. Tr. 123. Because the Report's weights were adopted for all of the other drug transactions, we calculate the total weight found by the District Court to be approximately 7.51 kilos of cocaine, not the 7.57 figure in the Report (a difference of 63.5 grams of cocaine, the equivalent of the amount of marijuana discounted in paragraphs 14 and 29).

3 .These transactions are described in the Pre-sentence Report at paragraphs 9, 11, 13, 17, 18, 20, 22, 24, 31, and 32.

4 . The amounts listed in paragraphs 9, 17, 18, 20, 22, 24, 31, and 32 total the equivalent of 2.15 kilos of cocaine. Subtracting this amount from the 7.51 kilos attributed to Lawrence by the District Court (see note two above) still leaves 5.36 kilos.