United States v. Vann

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JAN 20 1998
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 97-6210
v. (D.C. No. CR-97-17-M)
FRANK EDWARD VANN, (W.D. Okla.)
Defendant - Appellant.
ORDER AND JUDGMENT*
Before ANDERSON, McKAY, and LUCERO, Circuit Judges.
After examining the briefs and the appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered
submitted without oral argument.
Pursuant to a plea agreement, Defendant, Mr. Frank Edward Vann, pled guilty to
conspiracy involving the sale of cocaine powder, and he was sentenced to 292 months in
prison. Defendant is appealing a four-level enhancement of his offense level for being a
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
leader in an illegal enterprise involving five or more people, pursuant to U. S. Sentencing
Guideline § 3B1.1(a). Defendant contends the district court did not make specific
findings of fact to support this enhancement. Additionally, Defendant maintains the
district court’s conclusion that Defendant was a leader is based on unreliable information
and unsupported facts contained in the presentence report.
The district court did make explicit findings regarding Defendant’s role in the
conspiracy:
The Court found by a preponderance of the evidence, the defendant was a
leader in this crack cocaine conspiracy . . . [and] in considering a number of
factors, found that the defendant exercised decision making [sic] authority
over others as well as planning and organizing the same. The Court
observed that the defendant recruited other participants and accomplices to
do this, as well as claiming a larger share of the proceeds. The Court
further found that the defendant exercised a leadership role in the criminal
activity in this case, that he directed others, ordered others in matters
concerning picking up and splitting the proceeds, and instructed others as to
where the money from the illegal activity was to be sent.
R., Vol. I at 120 (Findings, United States v. Vann, CR 97-00017-002-M at 3).
Defendant challenges the determination of the district court that he was a leader of
a criminal enterprise because these findings: (1) do not state specifically who the
Defendant directed; (2) do not specify the relative share of the proceeds Defendant
received; and (3) do not specify what evidence the court relied upon when determining
that Defendant was a leader. See Appellant’s Br. at 14-16. Defendant maintains that
these findings are, therefore, not specific enough to support the enhancement of his
offense level. See id. at 16. Under this court’s holdings in United States v. Melendez-
2
Garcia, 28 F.3d 1046, 1056 (10th Cir. 1994), and United States v. Pedraza, 27 F.3d 1515,
1530-31 (10th Cir. 1994), the district court’s findings are specific enough to withstand
challenge.
We “review a district court’s factual findings supporting a sentence enhancement
for clear error . . . [and t]he district court’s application of those facts to the sentencing
guidelines is reviewed de novo.” United States v. Valdez-Arieta, 127 F.3d 1267, 1270
(10th Cir. 1997) (citations omitted).
The district court’s determination that Defendant was a leader of the conspiracy
clearly conforms to our previous decisions. See, e.g., United States v. Smith, No. 96-
6377, 1997 WL 768372, at *5-6 (10th Cir. Dec. 15, 1997); United States v. Knox, 124
F.3d 1360, 1366 (10th Cir. 1997); United States v. Lacey, 86 F.3d 956, 967 (10th Cir.),
cert. denied, 117 S. Ct. 331 (1996); United States v. Edwards, 69 F.3d 419, 439-40 (10th
Cir. 1995); United States v. Robertson, 45 F.3d 1423, 1448-49 (10th Cir. 1995); see also
United States v. Allemand, 34 F.3d 923, 931-32 (10th Cir. 1994) (affirming a sentence
enhancement under U.S.S.G. 3B1.1(b) and stating: “[A]lthough the evidence of
Thomas’s supervisory role is sparse, we cannot say that the court clearly erred by finding
that Thomas was a manager or supervisor.”).
Defendant argues that there is not enough reliable evidence in the record to support
a determination that he was a leader of the illegal enterprise. This court reviews for clear
error whether a sentence enhancement under U.S.S.G. § 3B1.1 is supported by a
3
preponderance of the evidence. See United States v. Guadalupe, 979 F.2d 790, 795 (10th
Cir. 1992). There is clearly enough evidence in the record for the district court to have
found that Defendant was a leader in the conspiracy. See United States v. Bernaugh, 969
F.2d 858, 863 (10th Cir. 1992) (holding that the court can use any reliable evidence in
enhancing the sentence, including hearsay testimony from another’s trial). The record
includes the testimony of several co-conspirators, presented at the trial of Defendant’s co-
leader in the conspiracy, which specifically detail Defendant’s role in the illegal
enterprise. See, e.g., R., Vol. II at 93-96, 112, 117; Vol. III at 231-32, 268-69. It is not
necessary for the court to detail the specific amounts of money that Defendant received
from the drug sales; there is sufficient evidence in the record to support the factual
findings that Defendant directed his co-conspirators as to the dispersal of the conspiracy’s
proceeds and that he received a larger share of the proceeds than his co-conspirators. See
R., Vol. II at 112, 117; Vol. III at 228, 268-69.
Finding no error in the decision of the district court to apply the offense level
enhancement, we AFFIRM the sentence imposed.
AFFIRMED.
Entered for the Court
Monroe G. McKay
Circuit Judge
4