United States v. Harris

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4607
TONY O'NEAL HARRIS,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Greenville.
Henry M. Herlong, Jr., District Judge.
(CR-95-912)
Submitted: February 27, 1997
Decided: March 13, 1997
Before MURNAGHAN, NIEMEYER, and MOTZ, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Adrian E. Cooper, Rock Hill, South Carolina, for Appellant. J. Rene
Josey, United States Attorney, E. Jean Howard, Assistant United
States Attorney, Greenville, South Carolina, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Tony O'Neal Harris pled guilty to conspiracy to distribute crack
cocaine, 21 U.S.C. § 846 (1994). He appeals his 250-month sentence,
contending that the district court considered unreliable evidence to
find that he was responsible for at least 1.5 kilograms of crack, and
that the court clearly erred in finding that he was a leader in the
offense. United States Sentencing Commission, Guidelines Manual,
§§ 2D1.1, 3B1.1(c) (Nov. 1995). We affirm.
Harris was arrested on November 20, 1995, after he and Eulee
Scott sold two ounces of crack to Tyrone Moore and Howard Davis
in Chester, South Carolina. Moore and Davis had previously been
arrested and were cooperating with authorities. Another six ounces of
crack were recovered from a hidden compartment in Harris' Dodge
van. At Harris' sentencing hearing, Federal Bureau of Investigation
Agent Michael Doaerty testified that he learned in interviews with
Davis and Moore that Harris and Scott brought crack from Florida on
a weekly basis beginning in late September 1995. Both Harris and
Scott lived in Florida. Harris sometimes used his Ford Crown Victoria
which also had a hidden compartment. He had purchased the Dodge
van in the name of a girlfriend, who lived in Charlotte, North Caro-
lina. He also had a cellular phone in her name and the telephone
records showed numerous calls to Charlotte and Gastonia in North
Carolina and to Miami and Fort Lauderdale in Florida. The agent also
interviewed Scott, who said that most of the drugs he and Harris
transported from Florida were sold in Gastonia.
Davis also testified at the sentencing hearing. He said Harris was
in charge, but did not always come with Scott to Chester to deliver
drugs. Davis said he personally saw six or seven ounces of crack each
time a delivery was made. He said he remembered five or six deliver-
ies during the time he and Moore were buying crack from Harris.
Taking the lowest amounts, this evidence showed deliveries of
slightly less than a kilogram of crack to Davis and Moore. The district
court estimated that Harris was involved with at least a kilogram and
a half in the course of the conspiracy.
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We find that the district court based its determination of the
amount of crack attributable to Harris on reliable evidence. Both wit-
nesses were subject to cross-examination and were questioned by the
court. See USSG § 2D1.1, comment. (n.12); United States v. Hicks,
948 F.2d 877, 883 (4th Cir. 1991) (due process is satisfied if factual
evidence relied on has minimal indicia of reliability beyond mere alle-
gation). The court did not rely on protected information provided by
Harris pursuant to his plea agreement, but on information from his co-
defendants. Moreover, the court's finding that Harris exercised a lead-
ership position was not clearly erroneous because it was supported by
Davis' testimony as well as the fact that Harris owned the specially-
equipped cars which were used to transport the drugs.
The sentence is therefore affirmed. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.
AFFIRMED
3