United States v. Johnny W. Bryant ( 1998 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 97-2736
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Johnny W. Bryant, *
* [UNPUBLISHED]
Appellant. *
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Submitted: December 26, 1997
Filed: January 6, 1998
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Before FAGG, BOWMAN, and MURPHY, Circuit Judges.
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PER CURIAM.
Johnny W. Bryant pleaded guilty to one count of conspiring to distribute
methamphetamine and to possess it with intent to distribute, in violation of 21 U.S.C.
§§ 841(a)(1) and (b)(1)(B), and 846 (1994). The District Court1 sentenced him to 100
months of imprisonment and five years of supervised release. In doing so, the Court
determined that an August 15, 1996 drug transaction involving sixteen ounces of
methamphetamine was reasonably foreseeable to Bryant, and that he was not entitled
1
The Honorable Dean Whipple, United States District Judge for the Western
District of Missouri.
to a downward departure pursuant to U.S. Sentencing Guidelines Manual § 4A1.3, p.s.
(1995) (district court may depart where criminal history does not adequately reflect
seriousness of defendant&s past conduct or likelihood defendant will commit other
crimes). On appeal, Bryant challenges both of these determinations. We affirm.
In calculating the sentence for a defendant convicted of a drug conspiracy, the
District Court may impute to the defendant the drugs attributable to his co-conspirators,
if the co-conspirators& activities were in furtherance of the conspiracy and were either
known to the defendant or reasonably foreseeable to him. See U.S. Sentencing
Guidelines Manual § 1B1.3(a)(1)(B) & § 1B1.3, comment. (n.2) (1995); United States
v. Weekly, 118 F.3d 576, 578 (8th Cir.) (relevant to reasonable-foreseeability
determination is whether defendant demonstrated substantial level of commitment to
conspiracy), dissent modified, 128 F.3d 1198 (8th Cir.), cert. denied, No. 97-6575,
1997 WL 696889 (U.S. Dec. 8, 1997).
The evidence at sentencing revealed the following facts. When an undercover
detective advised Bryant on August 12, 1996, that he wanted to discuss purchasing
sixteen ounces of methamphetamine, Bryant indicated that sixteen ounces would not
be a problem and that he would discuss the purchase price with Ralph Robbins, his co-
conspirator. During a drug transaction later that day, Bryant and Robbins again told
the detective that they could provide him with the sixteen ounces. In attempting to
arrange the sixteen-ounce purchase, the detective spoke on the phone on August 13
with Bryant, who indicated he wanted to complete the deal at his place of business, and
he and Robbins had the sixteen ounces. When the detective declined to make the
purchase at the business, Bryant offered to meet the detective at his motel room to
complete the deal. While Bryant did not physically participate in the August 15 sale,
Robbins yelled for Bryant when the detective entered the business, the deal occurred
in Bryant&s bedroom (located within the business premises), and Bryant was present on
the premises. Based on these facts, we cannot say the District Court clearly erred in
attributing to Bryant the sixteen ounces of methamphetamine, as the August 15
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transaction was reasonably foreseeable to him and was within the scope of the
conspiracy. See United States v. Maxwell, 25 F.3d 1389, 1397 (8th Cir.) (standard of
review), cert. denied, 513 U.S. 1031 (1994).
We also conclude that the District Court&s decision not to depart downward
under section 4A1.3 is unreviewable, as the Court was aware of its authority to do so.
See United States v. Hall, 7 F.3d 1394, 1396 (8th Cir. 1993).
Accordingly, we affirm the judgment of the District Court.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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