United States v. Facemyer

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 99-4662
JAMES EDWARD FACEMYER, JR., a/k/a
Jimmy,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
Charles H. Haden II, Chief District Judge.
(CR-99-24)
Submitted: March 28, 2000
Decided: April 13, 2000
Before LUTTIG and TRAXLER, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Joseph C. Cometti, Charleston, West Virginia, for Appellant. Rebecca
A. Betts, United States Attorney, John C. Parr, Assistant United
States Attorney, Huntington, West Virginia, 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Unpublished opinions are not binding precedent in this circuit.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:
James Facemyer appeals the 262-month sentence he received after
he pled guilty to conspiracy to distribute and possess with intent to
distribute methamphetamine. See 21 U.S.C.A.§ 846 (West 1999). He
contests the district court's finding that he was a leader or organizer
of the offense and its decision to enhance his sentence by four levels
under U.S. Sentencing Guidelines Manual§ 3B1.1(a) (1998). We
affirm.
From January 1998 to March 1999, Facemyer obtained metham-
phetamine from Mexican distributors in Florida, where he lived, and
sold it in West Virginia to a series of criminal associates, including
his cousin, Toni Nelson, Brian Stepp, Donald Malcolm, Jeff Stone
(who was murdered during a robbery after he bought a pound of
methamphetamine from Facemyer), and Cecil Allen Dean. Facemyer
sold methamphetamine to Malcolm, Stone, and Dean on credit in
multi-ounce, half-pound, and pound quantities, and they redistributed
it. Four murders associated with methamphetamine trafficking trig-
gered an investigation which eventually led to the arrest of Facemyer
and his customers.
A four-level sentence adjustment is appropriate under § 3B1.1(a) if
the defendant was the organizer or leader of a criminal activity that
involved five or more participants or was otherwise extensive. Some
of the factors to be considered by the district court are
the exercise of decision making authority, the nature of par-
ticipation in the commission of the offense, the recruitment
of accomplices, the claimed right to a larger share of the
fruits of the crime, the degree of participation in planning or
organizing the offense, the nature and scope of the illegal
activity, and the degree of control and authority exercised
over others.
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USSG § 3B1.1, comment. (n.4). Facemyer argues that he did not
recruit, organize, lead, or control his customers, or tell them what to
do with the methamphetamine he sold them. He cites cases from other
circuits which hold that supplying drugs to conspirators who then dis-
tribute the drugs is an insufficient basis for the leader/organizer
adjustment. See, e.g., United States v. Anderson, 189 F.3d 1201, 1212
(10th Cir. 1999); United States v. Yates, 990 F.2d 1179, 1182 (11th
Cir. 1993).*
However, evidence that a defendant was a major supplier of drugs
for distribution by members of a conspiracy is sufficient in this circuit
to support a leader or organizer adjustment. See United States v.
Banks, 10 F.3d 1044, 1057 (4th Cir. 1993). Facemyer did not dispute
that he was the supplier in this conspiracy and he profited more than
any other participant from the sales of methamphetamine. Because of
the nature of Facemyer's participation in the conspiracy, we find that
the district court did not clearly err in determining that he was a
leader or organizer.
We therefore affirm the sentence. We dispense with oral argument
because the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the decisional
process.
AFFIRMED
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*Facemyer cites similar decisions from other circuits dealing with the
manager or supervisor adjustment under § 3B1.1(b). See United States v.
Del Toro-Aguilera, 138 F.3d 340 (8th Cir. 1998); United States v. Logan,
121 F.3d 1172, 1179 (8th Cir. 1997); United States v. Vargas, 16 F.3d
155, 160 (7th Cir. 1994). While we agree that the manager/supervisor
adjustment requires management or supervision of another participant,
see United States v. Chambers, 985 F.2d 1263, 1268 (4th Cir. 1993), the
issue here is Facemyer's role as a leader or organizer.
3