United States v. French

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 96-4656
JAMES T. FRENCH, SR., a/k/a Jimmy
R. French,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Virginia, at Charlottesville.
James H. Michael, Jr., Senior District Judge.
(CR-C-95-64)
Submitted: February 28, 1997
Decided: March 19, 1997
Before ERVIN, HAMILTON, and MOTZ, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Alan S. Shachter, Manassas, Virginia; David H. Nelson, Charlottes-
ville, Virginia, for Appellant. Robert P. Crouch, Jr., United States
Attorney, Ray B. Fitzgerald Jr., Assistant United States Attorney,
Charlottesville, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Appellant James T. French Sr. ("French") appeals his jury convic-
tion and resulting 300-month sentence for conspiracy to distribute
crack cocaine in violation of 21 U.S.C. §§ 841(a)(1), 846 (1994). He
asserts that the evidence is insufficient to support his conviction; that
the court improperly calculated the quantity of drugs attributable to
him at sentencing; that the court erred in assigning him an upward
adjustment for a leadership role in the offense; and that the court erred
in assigning him an upward adjustment for threatening a witness.
Finding no error, we affirm.
French's son ("French Jr.") pled guilty to conspiracy. French's
indictment alleged that the two Frenches obtained large quantities of
crack cocaine for distribution in Culpepper County, Virginia and sold
the drugs to retail purchasers with the assistance of Lemuel Mosley,
Kimberly Newsome, and Rodney Newsome. French first asserts on
appeal that the Government failed to establish beyond a reasonable
doubt that "he and his son were involved in a drug conspiracy as
charged in the indictment." He alleges that there was no evidence
presented at trial that established a conspiracy between him and his
son or among any other participants. At best, French argues, the Gov-
ernment's case only "showed that French engaged in a handful of iso-
lated drug sales." We disagree.
We must sustain a jury verdict "if there is substantial evidence, tak-
ing the view most favorable to the Government, to support it."
Glasser v. United States, 315 U.S. 60, 80 (1942). We must consider
circumstantial as well as direct evidence and allow the government
the benefit of all reasonable inferences from facts proven to facts
sought to be established. United States v. Tresvant, 677 F.2d 1018,
1021 (4th Cir. 1982). Construing the evidence--including testimony
from two of the three conspirators named in the indictment--in the
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light most favorable to the Government, we find there is substantial
evidence to support the jury's verdict. Various trial witnesses testified
that they purchased cocaine from French, that French was a source of
cocaine for other dealers, and that French at times"fronted" cocaine
to dealers and awaited its sale for payment. Construing this evidence
in the light most favorable to the Government, we find it sufficient to
support the jury's verdict.
Next, French asserts that the court erred in determining that he was
responsible for 162.39 grams of crack cocaine for sentencing pur-
poses. This court reviews such factual determinations for clear error,
United States v. Blake, 81 F.3d 498, 503 (4th Cir. 1996), and accords
substantial deference to the district court's factual determinations
underlying its imposition of sentence. United States v. Brooks, 957
F.2d 1138, 1148 (4th Cir. 1992). Because drug quantity need only be
proved by a preponderance of the evidence, United States v. Williams,
986 F.2d 86, 90 (4th Cir. 1993), we will not disturb the court's deci-
sions as to quantity unless they are clearly erroneous. Brooks, 957
F.2d at 1148. We find no clear error here. The sentencing court fully
considered French's objections to the findings concerning quantity
contained in his presentence report, which the court adopted. We
agree with the sentencing court that those findings comported with the
evidence presented at trial and that, on the whole, the findings as to
quantity were in fact conservative.
French asserts that the court clearly erred in assigning him a two-
point upward adjustment for a leadership role in the offense. Under
USSG § 3B1.1(c),* an offense level may be increased two levels "[i]f
the defendant was an organizer, leader, manager, or supervisor in any
criminal activity [not described in earlier sections]." We review such
a determination for clear error. United States v. Harriott, 976 F.2d
198, 202 (4th Cir. 1992). Testimony of a credible government witness
is sufficient. United States v. Hyppolite, 65 F.3d 1151, 1159 (4th Cir.
1995), cert. denied, ___ U.S. #6D6D 6D#, 64 U.S.L.W. 3708 (U.S. Apr. 22,
1996) (No. 95-8395).
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*United States Sentencing Commission, Guidelines Manual (Nov.
1995).
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The court noted that two witnesses testified that French "fronted"
them cocaine with instructions to sell it and then bring money back
to him. The court found this evidence indicated that French was
directing activities of at least two conspirators. The court's recollec-
tion of this testimony alone is sufficient to support the upward adjust-
ment. Therefore, we find no clear error.
Finally, French asserts that the court erred in increasing his base
offense level two levels for intimidating a witness. If a defendant
"willfully obstructed or impeded, or attempted to obstruct or impede
the administration of justice" during investigation, prosecution or sen-
tencing, the sentencing court may increase the offense level by two
levels. USSG § 3C1.1. This provision covers conduct that includes
"threatening, intimidating, or otherwise unlawfully influencing a . . .
witness . . . directly or indirectly, or attempting to do so." USSG
§ 3C1.1, comment. (n.3(a)). A defendant must either threaten the wit-
ness in her presence or issue the threat in circumstances in which
there is some likelihood that the witness will learn of the threat.
Brooks, 957 F.2d at 1149-50.
French does not dispute that he approached the mother of a witness
prior to trial while he was on pre-trial release and stated, "Why are
you going to testify against me? You do not know who you are [mess-
ing] with." (expletive deleted). French asserts that the increase was
improper because there was no evidence that the threat was conveyed
to the witness who testified. We find this argument meritless. First,
French apparently believed that the witness's mother was going to
testify at the time he made the threat. Second, even if that were not
the case, the threat was conveyed in circumstances in which it was
likely that the recipient's daughter, who did testify against French,
would learn of the threat. Therefore--at a minimum--French's con-
duct was an attempt to indirectly influence a witness, which is clearly
covered by § 3C1.1. Therefore, this increase in offense level was
proper.
For these reasons, we affirm French's conviction and sentence. We
dispense with oral argument because the facts and legal issues are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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