United States v. Lonnie Smith

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4503
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LONNIE ANTHONY SMITH, a/k/a Timmy,
Defendant - Appellant.
No. 10-4504
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LONNIE ANTHONY SMITH, a/k/a Timmy,
Defendant - Appellant.
Appeals from the United States District Court for the Northern
District of West Virginia, at Wheeling. Frederick P. Stamp,
Jr., Senior District Judge. (5:09-cr-00027-FPS-JES-1; 5:09-cr-
00007-FPS-JES-1)
Argued: October 27, 2011 Decided: November 30, 2011
Before TRAXLER, Chief Judge, and GREGORY and KEENAN, Circuit
Judges.
Affirmed by unpublished opinion. Judge Gregory wrote the
opinion, in which Chief Judge Traxler and Judge Keenan joined.
ARGUED: Jeffrey Michael Brandt, ROBINSON & BRANDT, PSC,
Covington, Kentucky, for Appellant. Randolph John Bernard,
OFFICE OF THE UNITED STATES ATTORNEY, Wheeling, West Virginia,
for Appellee. ON BRIEF: Stephen D. Herndon, Wheeling, West
Virginia, for Appellant. William J. Ihlenfeld, II, United
States Attorney, John C. Parr, Assistant United States Attorney,
Wheeling, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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GREGORY, Circuit Judge:
This consolidated case comes on appeal from the conviction
and sentencing of appellant Lonnie Anthony Smith for: (1)
conspiracy to possess with intent to distribute heroin, (2)
causing a person to travel in interstate commerce to promote the
distribution of heroin, (3) the use of a telephone to facilitate
the distribution of heroin, and (4) conspiracy to escape. In
his appeal, Smith challenges the sufficiency of the evidence for
the conspiracy and interstate travel convictions. Smith also
contends that the failure of the Government to recommend a
sentence at the bottom end of the Guidelines range as promised
in Smith’s plea agreement constitutes plain error. For the
reasons that follow, we find that Smith’s arguments have no
merit.
I.
On February 3, 2009, a grand jury issued an indictment in
the Northern District of West Virginia charging Smith with the
violation of a number of federal statutes, and on April 7, 2009,
a superseding indictment was returned charging the instant
offenses. While awaiting trial, Smith plotted to escape from
the Northern Regional Jail in Moundsville, West Virginia, and he
pled guilty to a charge of conspiracy to escape.
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At Smith’s bench trial, a number of co-conspirators
testified according to plea agreements. The testimony showed
that Smith was a participant in and distributor for a heroin
ring. Smith would frequently meet his customers at hotel rooms
rented for him by his distributees in the Pittsburgh,
Pennsylvania, area, where he would sell heroin multiple times
each day, knowing that the heroin would be resold in the
Northern District of West Virginia, among other places.
On January 29, 2010, the district court found Smith guilty
of all three counts. Smith was sentenced to 262 months for his
conspiracy count, 60 months for his violation of the Travel Act,
18 U.S.C. § 1952 (2006), 48 months for the use of a telephone to
distribute heroin, and 60 months for his escape conviction. The
district court ordered Smith to serve all sentences
concurrently. Smith then filed his notice of appeal.
Smith appeals the sufficiency of the evidence of two
counts: conspiracy to possess with intent to distribute and to
distribute one kilogram of heroin, and aiding and abetting the
interstate travel of a person with the intent to carry on heroin
distribution. Smith also appeals the sentence on his escape
conviction. Because of the fact-intensive nature of this
appeal, we address the salient factual details of the heroin
conspiracy in the analysis on the merits of Smith’s appeal.
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II.
Smith challenges the sufficiency of the evidence for his
conspiracy and Travel Act convictions. This Court must uphold a
verdict where there is “substantial evidence” such that “a
reasonable finder of fact could accept as adequate and
sufficient to support a conclusion of a defendant’s guilt beyond
a reasonable doubt.” United States v. Burgos, 94 F.3d 849, 862
(4th Cir. 1996) (en banc), cert. denied, 519 U.S. 1151 (1997).
In doing so, this Court must look at the evidence as a “complete
picture, viewed in context and in the light most favorable to
the Government.” Id. We treat each challenge in turn, finding
that neither has merit.
A.
To prove conspiracy to possess with intent to distribute,
the government must show that (1) an agreement to possess heroin
with intent to distribute existed between two or more persons;
(2) the defendant knew of the conspiracy; and (3) the defendant
knowingly and voluntarily became a part of the conspiracy.
Burgos, 94 F.3d at 857.
Whether there is a single conspiracy or multiple
conspiracies depends upon the overlap of key actors,
methods, and goals. However, one may be a member of a
conspiracy without knowing its full scope, or all its
members, and without taking part in the full range of
its activities or over the whole period of its
existence. Also, it is not necessary that the
conspiracy have a discrete, identifiable
organizational structure. Often, the single
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conspiracy is comprised of a loosely-knit association
of members linked only by their mutual interest in
sustaining the overall enterprise of catering to the
ultimate demands of a particular drug consumption
market.
United States v. Nunez, 432 F.3d 573, 578 (4th Cir. 2005)
(internal citations and quotation marks omitted). Once a
conspiracy has been established, the government need only show a
slight connection between the defendant and the conspiracy.
Burgos, 94 F.3d at 861. Furthermore, competition in the drug
market among some conspirators does not preclude a finding of a
single conspiracy. United States v. Jeffers, 570 F.3d 557, 568
(4th Cir. 2009).
As is frequently the case in drug distribution trials, most
of the salient evidence came from co-conspirator testimony. The
district court gave the testimony of those co-conspirators
testifying under plea agreements “greater scrutiny” and
nonetheless concluded that the co-conspirators’ testimony was
credible. United States v. Smith, No. 5:09CR7-01, slip op. at
33 (N.D. W. Va. January 28, 2010).
Precedent and the facts are squarely on the side of the
Government. The district court made extensive findings of fact,
detailing the operation of the conspiracy. All members of the
conspiracy had a financial interest in the continued
distribution of heroin in the Northern District of West
Virginia; they shared the goal of “sustaining the overall
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enterprise of catering to the ultimate demands of a particular
drug consumption market.” Nunez, 432 F.3d at 578. That drug
market was the area around Weirton, West Virginia. See Smith,
at 28 (“It was in the mutual interest of defendant Smith and
various members of the conspiracy to promote and continue heroin
drug trafficking in the Northern District of West Virginia and
elsewhere.”).
All of the members of the conspiracy knew of the
significant quantity of heroin that Smith kept on hand, which
implies a distribution scheme. Furthermore, the repetitive drug
transactions at hotel rooms rented for Smith by the co-
conspirators establish the regular and continuing nature of a
drug-distribution conspiracy. Cf. Jeffers, 570 F.3d at 568(“Additionally, the evidence showed that the multiple drug
dealers at Shriver’s Motel engaged in ‘a consistent series of
smaller transactions,’ which comprised a single conspiracy.”)
(quoting United States v. Banks, 10 F.3d 1044, 1054 (4th Cir.
1993)).
The testimony of Kenneth Salters, Smith’s childhood friend
and co-conspirator, establishes the conspiracy and corroborates
the incriminating testimony of the other witnesses and co-
conspirators. Salters saw Smith sell heroin to customers on a
daily basis, including some of the co-conspirators. A
reasonable inference from Salters’s testimony is that Smith knew
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that at least some of his co-conspirators were redistributing
heroin in West Virginia. And Smith even helped Salters start
selling heroin by giving Salters a customer list that included
buyers from the Northern District of West Virginia, and the two
began a referral system for heroin demand that they individually
could not meet. Likewise, Salters corroborated testimony that
Smith paid heroin to co-conspirators who would rent motel rooms
and cars for Smith to further his drug activity and to hide
their identities if the police investigated. Salters also
testified that the phone numbers discussed by other witnesses
were ones used to deal heroin.
United States v. Banks is instructive. Banks involved,
like this case, a loose organization of drug distributors and
suppliers charged in a single conspiracy in which not all
participants knew the identities of the others participating,
but nevertheless were engaged with a common enterprise whose aim
was to supply drugs to a discrete region. Banks, 10 F.3d at
1053-54. The Court affirmed the convictions, rejecting the
defendant’s view that the government had proved numerous small
conspiracies but not a large overarching conspiracy. Id. at
1050-56. The evidence supporting such a finding “essentially
consist[ed] of testimony about a great number of discrete buy-
sell transactions between various ones of the alleged co-
conspirators, and nothing either directly or inferentially
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probative of any discernible hierarchical organization in which
they were linked.” Id. at 1053.
The prosecution put on evidence sufficient for a reasonable
trier of fact to conclude that Smith agreed with his co-
conspirators to distribute heroin in the Weirton area of West
Virginia. In addition to Salters’s testimony, co-conspirator
Grimes testified that Smith knew she was redistributing heroin
in West Virginia because she had told Smith about the sales and
that she told him that she was charging her customers twice what
she paid Smith. Grimes also testified that she saw Smith
possess large amounts of cash and heroin and sell heroin to
other customers. She told the court that Smith said that he was
worried because some of his customers were being indicted in
West Virginia.
Satathite, another West Virginia dealer, testified that
Smith knew Satathite was redistributing heroin and that one time
Smith remarked that Satathite must be “moving [the heroin]
pretty quick.” Additionally, Satathite testified that Smith met
him in West Virginia in the parking lot of the Weirton Medical
Center in June 2008 and sold him three bricks of heroin, further
establishing Smith’s ties to the redistribution of heroin in
West Virginia.
Additional circumstantial evidence that Smith knew that his
customers were coming from West Virginia includes the area code
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of the phone numbers used to call Smith to arrange drug
transactions and the license plates of vehicles used by co-
conspirators to pick up drugs.
Furthermore, Smith once offered to front heroin to
McLaughlin, a co-conspirator. Fronting drugs shows knowledge of
resale. See Nunez, 432 F.3d at 578 (citing the fact that drugs
were fronted as evidence of a conspiracy to distribute).
Many co-conspirators testified to the same few meeting
locations for deals with Smith, and many rented hotel rooms and
cars in exchange for heroin. Pen registers for Smith’s cell
phones showed frequent phone calls to a number of the co-
conspirators. Many co-conspirators also testified as to the
presence of trademark bag markings indicating different brands
of heroin distributed by Smith. All of the foregoing
demonstrate the similar methods and means used by the co-
conspirators and Smith to conduct the conspiracy.
The evidence here is at least as strong as that presented
in Banks. We therefore affirm the conspiracy conviction.
B.
A conviction under the Travel Act, 18 U.S.C. § 1952 (2006),
must have three elements: (1) interstate travel, (2) an intent
to promote an unlawful activity (a business enterprise), and (3)
performance or attempted performance of an unlawful act. United
States v. Gallo, 782 F.2d 1191, 1194 (4th Cir. 1986). Section
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1952(b) defines “unlawful activity” as “any business enterprise
involving . . . narcotics or controlled substances (as defined
in section 102(6) of the Controlled Substance Act) . . . in
violation of the laws . . . of the United States.” 18 U.S.C.
§ 1952(b) (2006). Smith’s liability for this violation is 18
U.S.C. § 2’s prohibition against “causing” or aiding and
abetting a violation of federal law.
Elements (2) and (3) above are clearly established by the
facts discussed above in connection with the sufficiency of the
conspiracy charge. The question is whether Smith did aid, abet,
and cause Bryan Cottrill, a confidential informant, to travel
interstate.
The illegal inducement of interstate travel occurred on
September 26, 2008. On that day, Cottrill, cooperating with
police, called Smith from West Virginia in order to arrange a
buy in Pennsylvania. The call was recorded. Since 2003,
Cottrill had bought heroin from Smith three or four times per
week. The usual pattern, followed in this instance, is that
Smith would tell Cottrill to “come up” to the “Robinson, Green
Tree” area of Pittsburgh, Pennsylvania; Cottrill would call
Smith once he arrived in the area, and Smith would tell him the
meeting location -- in this case, the Robinson Mall. On this
particular call, Cottrill told Smith that he was “about to leave
the shop” and “jump on the highway,” but that he wanted to make
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sure that it was “all good.” Cottrill went on to describe the
details of the purchase at the Robinson Mall.
Admittedly, there was no direct evidence produced during
the Cottrill direct examination that Smith knew where Cottrill
lived, that a phone with a West Virginia area code was used, or
that a car with West Virginia plates was used. Yet there is
sufficient evidence for a reasonable trier of fact to find
beyond a reasonable doubt that Smith, on this particular
occasion, violated the Travel Act. The district court
reasonably concluded that Smith violated the Travel Act based on
(1) the history of the relationship between Smith and Cottrill,
(2) the imputed knowledge of Smith that many of his purchasers
came from West Virginia, (3) the timing of the phone calls
suggesting the distance traveled by Cottrill, and (4) the use of
the phrases “come up” and “jump on the highway” suggesting that
Smith knew Cottrill was coming from West Virginia, and (5) the
fact that that Smith encouraged Cottrill to do so in order to
sell Cottrill heroin.
Court precedent bolsters this conclusion. Smith argues
that Rewis v. United States, 401 U.S. 808 (1971), controls. In
that case, a mere customer did not facilitate the business he
patronized. The Supreme Court agreed that “intent to . . .
facilitate” requires more than a mere “desire to patronize the
illegal activity.” Id. at 811. The evidence here, however,
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established that Cottrill frequently distributed heroin in West
Virginia purchased from Smith. Cottrill had more than a mere
patronage relationship with Smith.
In any case, the Rewis Court cites approvingly to a number
of circuit court cases “in which federal courts have correctly
applied § 1952 to those individuals whose agents or employees
cross state lines in furtherance of illegal activity.” Rewis,
401 U.S. at 813. As this Circuit noted in United States v.
Baker, 611 F.2d 961, 963 (4th Cir. 1979), one such case cited,
United States v. Zizzo, 338 F.2d 577, 580 (7th Cir. 1964), held
the proprietor of a gambling operation liable despite his
contention that he did not travel interstate and did not even
know of the interstate travel of his employees. The Zizzo court
said it was “clear that the gambling business . . . caused the
interstate travel by the three employees,” and that a jury could
properly infer that the proprietor knew that some of his
employees lived out-of-state. Zizzo, 338 F.2d at 580. This
Circuit in Baker found its facts -- an interstate trip made by a
prostitute at the direction of her boss -- were “analogous to
the employee-agent cases approved in Rewis [sic],” and upheld
the Travel Act conviction. Baker, 611 F.2d at 963.
We affirm the Travel Act conviction because of the
reasonable inference from the record that Smith knew Cottrill
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was coming from West Virginia and because of the overwhelming
evidence of the purpose of the call.
III.
Appellant next argues that he should be allowed to withdraw
his guilty plea because of the Government’s failure to move for
a sentence at the bottom of the Guidelines range for his escape
conviction.
The plain error standard governs here because Smith did not
raise this claim below. To prove plain error, “the appealing
party must show that an error (1) was made, (2) is plain . . . ,
and (3) affects substantial rights.” United States v. Lynn, 592
F.3d 572, 577 (4th Cir. 2010). The third prong means the error
“affected the outcome of the district court proceedings,”
Puckett v. United States, 129 S. Ct. 1423, 1429 (2009). “Fourth
and finally, if the above three prongs are satisfied, the court
of appeals has the discretion to remedy the error -- discretion
which ought to be exercised only if the error seriously
affect[s] the fairness, integrity or public reputation of
judicial proceedings.” Id. (citations ommitted).
Smith argues on appeal that the government breached its
contract -- Smith’s plea agreement for his escape charge -- when
the government failed to recommend a sentence at the low end of
the Guidelines range for that offense. Surely, Smith has
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established that the error was made and that it was plain.
However, Smith cannot demonstrate it “affected his substantial
rights” because the outcome was not affected by the error.
Smith was sentenced according to the grouping requirements
of U.S.S.G. § 3D1.2(c), which combines conduct for multiple
charges into a single tally for sentencing purposes. The court
sentenced Smith to 262 months for the conspiracy charge, which
was at the lowest end of the Guidelines range for the grouped
offense, and he was ordered to serve time for all of his counts
concurrently. So while Smith was sentenced to 60 months for his
escape charge, a lower sentence would not have helped him
because he would still be serving the concurrent 262-month
sentence for his conspiracy conviction. It therefore cannot be
said that the error violated Smith’s substantial rights.
Because Smith has not shown that the error affected his
substantial rights, we affirm the sentence of the district
court.
AFFIRMED
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