United States v. Mitchell

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
4444444444444444444444444444444444444444444444447
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 02-4618
JAMAL MITCHELL, a/k/a Boo,
Defendant-Appellant.
4444444444444444444444444444444444444444444444448
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
James C. Cacheris, Senior District Judge.
(CR-02-25)
Argued: April 4, 2003
Decided: July 31, 2003
Before NIEMEYER and SHEDD, Circuit Judges, and
Terry L. WOOTEN, United States District Judge for the
District of South Carolina, sitting by designation.
____________________________________________________________
Affirmed by unpublished per curiam opinion.
____________________________________________________________
COUNSEL
ARGUED: Michael Stefan Nachmanoff, Assistant Federal Public
Defender, Alexandria, Virginia, for Appellant. Richard Daniel Cooke,
Special Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON
BRIEF: Frank W. Dunham, Jr., Federal Public Defender, Frances H.
Pratt, Research and Writing Attorney, Alexandria, Virginia, for
Appellant. Paul J. McNulty, United States Attorney, Gene Rossi,
Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Alexandria, Virginia, for Appellee.
____________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
____________________________________________________________
OPINION
PER CURIAM:
A federal jury in the Eastern District of Virginia convicted Jamal
Mitchell of conspiracy to distribute cocaine and cocaine base, com-
monly known as crack, in violation of 21 U.S.C. §§ 841(a)(1) and
846, and of conspiracy to commit money laundering in violation of
18 U.S.C. § 1957. After the jury's finding of guilt, the district court
entered an order of forfeiture. Mitchell appeals his conviction, sen-
tence, and the order of forfeiture. He argues: (1) that his drug conspir-
acy conviction should be vacated because of improper venue; (2) that
the order of forfeiture should be vacated because it was never incor-
porated into the judgment of conviction or sentence; (3) that his sen-
tence on the drug charge should be vacated because the district court
did not warn him of the effect of the government's filing of an infor-
mation with respect to a prior conviction and of his right to challenge
that conviction; and (4) that the sentencing guidelines were improp-
erly applied. Because we find that Mitchell's arguments lack merit,
we affirm his conviction and reject the challenges to his sentence and
order of forfeiture.
I.
A.
This matter comes before the Court as a result of a drug and money
laundering conspiracy that allegedly operated for more than eleven
years. From 1990 until his arrest in October of 2001, Mitchell con-
2
spired with others to sell cocaine and crack and to launder the pro-
ceeds. At trial, the government offered the testimony of two co-
conspirators, Rodney Alston and Vernon Williams, also named in the
indictment against Mitchell. Alston testified that he began distributing
drugs in the Durham, North Carolina area in the early 1990s. Begin-
ning in 1991, he would drive from North Carolina to Washington,
D.C., meet with Mitchell to purchase drugs, and immediately drive
back through Virginia to North Carolina. At first, Alston purchased
only crack from Mitchell. Later, he shifted from purchasing crack to
purchasing large amounts of powder cocaine from Mitchell. In addi-
tion to purchasing drugs, Alston also purchased cars for Mitchell.
Like Alston, Vernon Williams began purchasing drugs from Mitch-
ell in the early 1990s. In a typical deal, Williams would telephone
Mitchell, who would deliver the drugs to Williams' apartment in
Washington, D.C., and then Williams would sell the drugs. Williams
testified that he saw Mitchell with a gun during an incident in 1994.
Williams testified he observed Mitchell exchange gunfire with a
masked person shooting at him and others while they were driving in
Washington, D.C.
The government also presented testimony by Alston's two neph-
ews, Maurice Stanley and Micah Jermaine. They testified that they
traveled to Washington, D.C. with their uncle Alston twelve or thir-
teen times to purchase drugs from Mitchell. After receiving the drugs,
they would immediately drive back through Virginia to North Caro-
lina and help Alston sell the drugs. Additionally, the government
offered evidence presented by two female friends of Mitchell who tes-
tified they purchased cellular telephones in their names for Mitchell's
use.
B.
On January 24, 2002, a federal grand jury in the Eastern District
of Virginia returned a two-count indictment against Mitchell. Count
one charged Mitchell with conspiracy to distribute 5 kilograms or
more of cocaine, conspiracy to distribute 50 grams or more of crack,
and conspiracy to distribute cocaine and crack within 1,000 feet of a
school. Count two charged Mitchell with a money laundering conspir-
acy. In addition, the indictment included a forfeiture provision. Ten
3
days before trial, the government filed a bill of particulars on the for-
feiture charge. The government also filed a notice of intent to use
Mitchell's prior drug conviction to enhance his sentence.
Prior to trial, Mitchell filed a motion to dismiss count one for
improper venue, or in the alternative, to transfer venue, on the
grounds that the overt acts alleged in the indictment were insufficient
to establish venue in the Eastern District of Virginia. After a hearing,
the district court denied the motion. Subsequently, the defendant filed
his own pro se motion to transfer the case to the District of Columbia,
but the district court declined to reconsider its prior decision. Subse-
quently, the case was tried and the jury found Mitchell guilty on the
cocaine conspiracy and money laundering counts. However, on a spe-
cial verdict form, the jury found Mitchell not guilty on the charges of
conspiracy to distribute crack and conspiracy to distribute cocaine and
crack within 1,000 feet of a school. After the jury returned the verdict,
the district court entered an order of forfeiture.
A sentencing hearing was held on July 24, 2002. On August 29,
2002, the district court issued a sentencing memorandum explaining
the court's determination of the applicable sentencing guidelines. The
district court imposed a sentence of 360 months imprisonment and 10
years supervised release for count one, the drug conspiracy count; and
120 months imprisonment and 3 years supervised release for count
two, the money laundering count. The sentences were ordered to run
concurrently.
Mitchell filed a timely notice of appeal.
II.
Mitchell first argues that venue in the Eastern District of Virginia
was improper on the drug trafficking charge. This Court reviews de
novo questions of law governing venue. United States v. Stewart, 256
F.3d 231, 238 (4th Cir. 2001).
The Constitution provides, in relevant part, that"[t]he Trial of all
Crimes . . . shall be held in the State where the said Crimes shall have
been committed." U.S. CONST. art. III, § 2, cl. 3. The Sixth Amend-
4
ment reinforces this command, stating that "[i]n all criminal prosecu-
tions, the accused shall enjoy the right to a speedy and public trial,
by an impartial jury of the State and district wherein the crime shall
have been committed." U.S. CONST. amend. VI. Federal Rule of Crim-
inal Procedure 18 further provides that "[e]xcept as otherwise permit-
ted by statute or by these rules, the prosecution shall be had in a
district in which the offense was committed." F ED.R.CRIM.P. 18. Con-
gress has also established that with continuing offenses, "any offense
against the United States begun in one district and completed in
another, or committed in more than one district, may be inquired of
and prosecuted in any district in which such offense was begun, con-
tinued, or completed." 18 U.S.C. § 3237(a).
When multiple counts are alleged in an indictment, venue must be
proper on each count. See United States v. Bowens, 224 F.3d 302, 308
(4th Cir. 2000). Venue on a count is proper only in a district in which
an essential conduct element of the offense took place. Id. at 309. In
a conspiracy case, the Supreme Court has long held that venue is
proper in any district in which a conspirator performs an overt act in
furtherance of the conspiracy or performs acts that effectuate the
object of the conspiracy, even though there is no evidence that the
defendant had ever entered that district or that the conspiracy was
formed there. Hyde v. United States, 225 U.S. 347, 356-67 (1912).
The burden is on the government to prove venue by a preponderance
of the evidence. United States v. Al Talib, 55 F.3d 923, 928 (4th Cir.
1995).
Mitchell maintains that venue on the drug conspiracy charge is not
proper in the Eastern District of Virginia. Mitchell argues the only
conduct relating to the drug conspiracy in the Eastern District of Vir-
ginia is that his co-conspirators drove the drugs through that district
on at least three occasions after they were purchased from Mitchell
in Washington, D.C. Mitchell concedes that venue was proper in the
Eastern District of Virginia on count two, the money laundering
count, but argues that the purchasing of a home and the titling of cars
in that district should only be used to establish venue for the money
laundering count, not the drug conspiracy count. We disagree with
this position for the reasons set forth and find venue is proper in the
Eastern District of Virginia on the drug conspiracy count.
5
In the indictment against Mitchell on the drug conspiracy count,
the government referenced the following overt acts carried out by
Mitchell and/or his conspirators that it argues support venue in the
Eastern District of Virginia: (1) Mitchell met Alston in Washington,
D.C. and thereafter engaged in repeated drug transactions that led to
the transportation of cocaine through the Eastern District of Virginia;
(2) Mitchell purchased a residence in the Eastern District of Virginia
with the proceeds of his illegal drug-trafficking activities; and (3)
Mitchell purchased automobiles with drug proceeds and titled them
in the Eastern District of Virginia.
This Court has repeatedly held that the overt act of one conspirator
in a district suffices to establish venue for all other co-conspirators in
that district. See Al-Talib, 55 F.3d at 928. The overt act or acts neces-
sary to support venue in a conspiracy case do not have to be substan-
tial. For example, in Al-Talib, this Court found that venue was proper
in the district of Virginia when the government showed that while on
a trip to arrange a drug deal, a conspirator drove through Virginia,
received a speeding ticket in Virginia, and landed in Virginia on a
return flight. The conspirator also had his car registered in Virginia.
The Al-Talib court recognized that far more insubstantial acts such
as telephone calls to the district have served to establish venue in con-
spiracy cases. See also United States v. Ramirez-Amaya, 812 F.2d
813, 816 (2d Cir. 1987) (finding venue proper when cocaine flown
over district); United States v. Shearer, 794 F.2d 1545, 1550-1551
(11th Cir. 1986) (finding venue proper based on automobile trip
through and airplane flight over district); United States v. Lewis, 676
F.2d 508, 511 (11th Cir. 1982) (finding venue proper based on tele-
phone calls to district in furtherance of conspiracy); United States v.
Prueitt, 540 F.2d 995, 1006 (9th Cir. 1976) (finding venue proper
whenre marijuana flown over district); United States v. Williams, 536
F.2d 810, 812 (9th Cir. 1976) (finding venue proper based on conspir-
ators' flight over district en route to obtain marijuana).1
____________________________________________________________
1
Mitchell points out in his brief that all of these cases were decided
prior to the Supreme Court's decision in Rodriguez-Moreno. Mitchell
also argues that these cases are distinguishable because they involve
charges of importation of drugs and transportation is a critical element
under that statute. However, all of these cases are not exclusively drug
importation cases. Regardless, the Court cites to them as reference for
the general principles traditionally applied in venue actions.
6
Mitchell argues that two recent Supreme Court cases, United States
v. Cabrales2 and United States v. Rodriguez-Moreno,3 which differen-
tiate between essential and non-essential elements of offenses, now
call into question the traditional standards permitting conspiracy pros-
ecutions in multiple districts. We disagree.
In Cabrales, the defendant was indicted in Missouri for money
laundering that occurred entirely in Florida. The currency that was
purportedly laundered was generated from a drug conspiracy in Mis-
souri. Importantly, the defendant was not charged with participation
in the Missouri drug conspiracy, nor was it alleged that she trans-
ported the funds from Missouri to Florida. The government argued in
Cabrales that venue in Missouri was proper because it was where the
laundered funds were generated. The Eighth Circuit Court of Appeals
rejected this argument and the Supreme Court affirmed. In explaining
why venue was not proper in Missouri on the money laundering
count, the Supreme Court emphasized that money laundering "might
rank as a `continuing offense,' triable in more than one place, if the
launderer acquired the funds in one district and transported them to
another." Cabrales, 524 U.S. at 8. But in Cabrales, the defendant did
not acquire the funds in Missouri nor did she transfer the funds from
Missouri to Florida. She only laundered the money through a series
of transactions that took place entirely in Florida. The Supreme Court
determined that venue was not proper in Missouri because the defen-
dant's money laundering activities occurred after the fact of a drug
conspiracy offense began and completed by others.
In Rodriguez-Moreno, the defendant was charged with a gun
offense under 18 U.S.C. § 924(c)(1), which makes it a crime to "use
or carry a firearm during and in relation to a crime of violence." The
defendant kidnapped an individual in Texas. He was then transported
to New Jersey and finally to Maryland. While in Maryland, the defen-
dant obtained a gun and used it to threaten his captive. The defendant
was ultimately tried and convicted in New Jersey on the § 924(c)
charge. The Supreme Court held that venue in New Jersey was proper
because the commission of a crime of violence, the kidnapping
____________________________________________________________
2
United States v. Cabrales, 524 U.S. 1 (1998).
3
United States v. Rodriguez-Moreno, 526 U.S. 275 (1999).
7
charge, was an essential element of the § 924(c) gun charge. As well,
the gun was used "during and in relation to" the kidnapping, and
because the kidnapping charge was a continuing offense, venue was
held to be proper in any district in which the kidnapping "was begun,
continued, or completed." Rodriguez-Moreno, 526 U.S. at 282.
The Rodriguez-Moreno court distinguished Cabrales by character-
izing the underlying drug conspiracy that generated the criminally-
derived proceeds as a "circumstance element" of money laundering,
which was insufficient to establish venue. In Rodriguez-Moreno,
however, the underlying crime of violence (kidnapping) was an "es-
sential element" of the § 924(c) firearm offense, providing an ade-
quate basis for venue. Significantly, both cases emphasize that the law
regarding venue in conspiracies remains the same: venue is proper for
a conspiracy wherever the agreement was made or where any conspir-
ator carried out overt acts. Rodriguez-Moreno, 526 U.S. at 281-282;
Cabrales, 524 U.S. 8-10.
This Court has previously referenced the Supreme Court's deci-
sions in Cabrales and Rodriguez-Moreno in support of the proposi-
tion that "venue is limited to the place where the essential conduct
elements occur, without regard to the place where other essential ele-
ments of the crime occur." United States v. Bowens, 224 F.3d 302,
309 (4th Cir. 2000). As footnoted in Bowens:
At first blush, it might seem that this rule imposes a signifi-
cant limitation on permissible venues. It does not. In deter-
mining venue for a particular offense, not only is the
conduct of the defendant himself considered, but the con-
duct of anyone with whom he shares liability as a principal
is as well. Thus, in a conspiracy charge, venue is proper for
all defendants wherever the agreement was made or wher-
ever any overt act in furtherance of the conspiracy tran-
spires.
Id. at 311 n.4.
In this case, we conclude that acts of Mitchell and his co-
conspirators in the Eastern District of Virginia were essential in fur-
thering the drug conspiracy and were sufficient to establish venue on
8
the drug conspiracy count. Mitchell engaged in a drug conspiracy that
involved the sale of drugs in Washington, D.C., the transportation of
those drugs through Virginia, and the distribution of the drugs in
North Carolina. The transportation of the drugs through Virginia was
an act in furtherance of the conspiracy and was essential to the distri-
bution of those drugs in North Carolina. The facts of this case are dis-
tinguishable from Cabrales because Mitchell was charged with a drug
conspiracy count that was ongoing and intertwined with the money
laundering count. The drug conspiracy continued for approximately
eleven years and stopped only upon Mitchell's arrest. In Cabrales, the
defendant was not charged in connection with the drug conspiracy.
The only allegation was that the defendant laundered money that
resulted from a completed drug conspiracy.
In conclusion, a conspirator's use of the Virginia highways to
transport drugs, purchase of a Virginia residence with drug proceeds,
and purchase of automobiles with drug proceeds that were subse-
quently titled in Virginia establish a sufficient nexus to Virginia to
allow for indictment and prosecution there on conspiracy drug
charges. Accordingly, we find that the district court did not err in
denying Mitchell's motion to dismiss count one of the indictment for
improper venue.
III.
Mitchell next argues that the order of forfeiture entered against him
should be vacated because it was never incorporated into the judg-
ment of conviction and sentence. Because Mitchell did not raise this
claim in the district court, we review for plain error. FED.R.CRIM.P.
52(b). In order to establish our authority to notice an error not pre-
served by a timely appeal, Mitchell must show that an error occurred,
that the error was plain, and that the error affected his substantial
rights. United States v. Olano, 507 U.S. 725, 732 (1993). Even if
Mitchell were to satisfy these requirements, correction of the error
remains within our discretion, which the court "should not exercise
. . . unless the error seriously affects the fairness, integrity or public
reputation of judicial proceedings." Id.Under the rule governing forfeiture in criminal cases, the court
shall not enter a judgment of forfeiture unless the defendant first
9
receives notice that the government will seek forfeiture of property as
part of any sentence. FED.R.CRIM .P. 32.2(a). Second, the court must
determine, as soon as is practicable following a finding of guilt on the
substantive charges, what property is subject to forfeiture, and enter
a preliminary order of forfeiture. FED.R.CRIM.P. 32.2(b)(1)-(2). Third,
the rule provides that "[a]t sentencing — or at any time before sen-
tencing if the defendant consents — the order of forfeiture becomes
final as to the defendant and must be made a part of the sentence and
be included in the judgment." FED.R.CRIM.P. 32.2(b)(3). Similarly, the
applicable forfeiture statute in this case, 21 U.S.C. § 853(a), provides
that the court, "in imposing sentence on [a person subject to forfei-
ture], shall order . . . that the person forfeit to the United States all
property described in this subsection."
Mitchell received notice of the forfeiture both in the indictment and
in a subsequent bill of particulars. After the jury's verdict establishing
guilt, the court identified the property subject to forfeiture and entered
a preliminary order of forfeiture reflecting that determination. At
Mitchell's sentencing, however, the trial judge did not make the for-
feiture part of the sentence. Further, a forfeiture reference was not
included in the judgment of conviction entered later that day. Mitchell
argues that the district court failed to comply with the forfeiture
requirements and, therefore, the more than $2,000,000 of money and
property should be returned. We disagree.
Assuming that Mitchell was able to show that the failure to incor-
porate the forfeiture order into the judgment of conviction and sen-
tence was plain error that affected his substantial rights, the Supreme
Court precedent of Olano directs that the court of appeals should not
exercise discretion to correct the error unless the error seriously
affects the fairness, integrity or public reputation of judicial proceed-
ings. See Olano, 507 U.S. at 732. In this case, the government pro-
vided Mitchell with proper notice of the forfeiture by including a
forfeiture count in the indictment and by providing a bill of particu-
lars addressing the forfeiture. Further, the district court complied with
Rule 32.2(b)(1)-(2) by determining what property was subject to for-
feiture and by entering a preliminary order of forfeiture shortly after
the jury's determination of guilt. At sentencing, this preliminary order
of forfeiture became a final order pursuant to Rule 32.2(b)(3).
10
Mitchell was clearly on notice of the pending forfeiture through the
indictment, the bill of particulars, and the preliminary order of forfei-
ture. However, at no point did Mitchell or his counsel raise an objec-
tion or respond to the pending forfeiture. Further, Mitchell did not
raise the issue of forfeiture during his sentencing hearing. While the
record indicates that the forfeiture was not made part of the sentence
and was not included in the judgment, Mitchell was on notice and had
ample opportunity to challenge the forfeiture. Mitchell has not put
forth any evidence that would indicate that the more than $2,000,000
in forfeited money and property was anything other than proceeds
derived from illegal drug activity. Therefore, under the specific facts
of this case, the failure to incorporate the forfeiture order into the
judgment of conviction and sentence was simply a ministerial error
that did not seriously affect the fairness, integrity, or public reputation
of judicial proceedings. As well, any error by the district judge was
harmless. Therefore, Mitchell is not entitled to relief on this claim.4
IV.
Mitchell next challenges his federal sentence claiming that the dis-
trict court failed to warn him of the effect of the government's filing
of an information with respect to a prior conviction and his right to
challenge it as required by 21 U.S.C. § 851(b). Because Mitchell did
not raise this claim in the district court, our review is for plain error.
United States v. Ellis, 326 F.3d 593 (4th Cir. 2003).
Section 851(b) provides that if the government files an information
seeking enhanced penalties for a drug offense on the basis of prior
convictions, the court shall, "after conviction but before pronounce-
ment of sentence, inquire of the [defendant] whether he affirms or
denies that he has been previously convicted as alleged in the infor-
mation, and shall inform him that any challenge to a prior conviction
which is not made before sentence is imposed may not thereafter be
raised to attack the sentence." This procedure provides the defendant
with a "full and fair opportunity to establish that he is not the previ-
____________________________________________________________
4
We find that the decision in United States v. Pease, 2003 WL
21196503 (11th Cir. 2003), is reviewing an ancillary civil proceeding
and the facts of that case are distinguishable from those facts raised in
Mitchell's criminal appeal.
11
ously convicted individual or that the conviction is an inappropriate
basis for enhancement under section 841." United States v. Campbell,
980 F.2d 245, 252 (4th Cir. 1992). The record indicates that the dis-
trict court did not specifically question Mitchell or advise him as
required under § 851(b). However, we conclude that the error did not
affect Mitchell's substantial rights.
As required by 21 U.S.C. § 851(b), the government filed an infor-
mation prior to trial notifying the defendant that the government
intended to increase his statutory penalty under 21 U.S.C. § 841(b) by
using a 1993 conviction for attempted possession with intent to dis-
tribute cocaine. Section 851(c)(1) provides that if the defendant
intends to contest the government's use of a prior conviction to
enhance the sentence, the defendant must file a written response to the
government's information and the court is required to have a hearing
to resolve the dispute. Mitchell, however, filed no written response
and did not contest the existence or validity of the prior convictions
pursuant to § 851(c). See United States v. Williams, 298 F.3d 688, 693
(7th Cir. 2002) (holding failure to comply with § 851(b) was harmless
error, in part because defendant did not comply with § 851(c) proce-
dures for challenging prior convictions).
We also note that the presentence report prepared in Mitchell's
case listed the 1993 conviction and indicated that it would increase
the minimum mandatory custodial sentence, supervised release
period, and minimum fine amount. Neither Mitchell nor his attorney
raised any question about the conviction or objected to the contents
of the presentence report prior to sentencing. See United States v. Hill,
142 F.3d 305, 313 (6th Cir. 1998) (holding that failure to comply with
§ 851(b) was harmless, in part because defendant did not object to
prior convictions listed in presentence report). In addition, during the
sentencing hearing, the district court asked Mitchell if he had read the
presentence report, reviewed it with counsel, and was satisfied with
the accuracy. Mitchell paused prior to answering. In clarifying its
question, the district court said, "in other words, your prior record,
which is nothing, and family and those kinds of things." Mitchell then
responded in the affirmative to the court's question. We find the
court's comment does not change the analysis of this issue. As noted,
Mitchell did respond that he was satisfied with the accuracy of the
presentence report. Therefore, we conclude that had the district court
12
specifically complied with the requirements of § 851(b), there is no
basis to find that Mitchell or his counsel would have raised any objec-
tion to the potential sentence Mitchell faced based on the § 851 enhance-
ment.5
For the reasons stated above, we conclude that any error regarding
failure to comply with § 851(b) did not affect Mitchell's substantial
rights and was, therefore, harmless.
V.
Finally, Mitchell argues that the district court improperly applied
the United States Sentencing Guidelines in determining his sentence.
This Court reviews for clear error the factual determination of a dis-
trict court in applying the Sentencing Guidelines and gives due defer-
ence to a district court's application of a guideline to particular facts.
18 U.S.C. § 3742(e); United States v. Harris, 128 F.3d 850, 852 (4th
Cir. 1997) (weapon enhancement under U.S.S.G. § 2D1.1); United
States v. Sayles, 296 F.3d 219, 224 (4th Cir. 2002) (role in offense
under U.S.S.G. § 3B1.1).
A.
Regarding his sentence, Mitchell first argues that the district court
erred in applying the two-level weapon enhancement. Under the sen-
tencing guidelines, the offense level for a defendant who committed
a drug trafficking offense must be increased by two levels "[i]f a dan-
gerous weapon (including a firearm) was possessed." U.S.S.G.
§ 2D1.1(b)(1). Application note 3 of this guideline adds: "The
enhancement for weapon possession reflects the increased danger of
violence when drug traffickers possess weapons. The adjustment
should be applied if the weapon was present, unless it is clearly
____________________________________________________________
5
The statute also provides that a defendant is not permitted to chal-
lenge a conviction that pre-dates the filing of the government's informa-
tion by more than five years. See 21 U.S.C. § 851(e). The government
filed the information in this case on April 5, 2002. The conviction noted
in the information occurred on February 3, 1993, more than five years
earlier.
13
improbable that the weapon was connected with the offense."
U.S.S.G. § 2D1.1(b)(1) cmt. n.3.
Mitchell argues that the two-level gun enhancement was inappro-
priate because the shooting incident in 1994 was part of a different
drug conspiracy and the testimony by his co-conspirators that they
had seen Mitchell with a gun was unreliable. The district court
rejected these arguments in its sentencing memorandum dated August
29, 2002. In support of the two-level enhancement, the district court
noted that conspirator Williams and Officer Shedwick (the police
officer reporting to the scene), both testified that the defendant pos-
sessed and used a firearm during a 1994 incident in which Mitchell
held $9,000 that he received from Williams in a drug transaction. Fur-
ther, the district court referred to testimony by other co-conspirators
that they had seen Mitchell in possession of a firearm on other occa-
sions. We find that this testimony and the additional evidence that the
drug conspiracy lasted from the early 1990s until 2001 is more than
sufficient to show that it was not clearly improbable that the weapon
was connected with the drug conspiracy offense. Therefore, we con-
clude that the district court did not err in finding that the weapon
enhancement should apply to increase Mitchell's offense level.
B.
Mitchell next argues that the district court erred in increasing his
sentencing offense four-levels for his role as an organizer or leader in
the drug conspiracy. Under the sentencing guidelines, a defendant's
offense level should be increased by four levels"[i]f the defendant is
an organizer or leader of a criminal activity that involved five or more
participants or was otherwise extensive." U.S.S.G. § 3B1.1(a). The
Sentencing Commission has indicated that a court should consider
seven factors in determining a defendant's "leadership and organiza-
tional role." U.S.S.G. § 3B1.1, cmt. n.4. These include: "[1] the exer-
cise of decision making authority, [2] the nature of participation in the
commission of the offense, [3] the recruitment of accomplices, [4] the
claimed right to a larger share of the fruits of the crime, [5] the degree
of participation in planning or organizing the offense, [6] the nature
and scope of the illegal activity, and [7] the degree of control and
authority exercised over others." U.S.S.G. § 3B1.1 cmt. n.4; see also
Sayles, 296 F.3d at 224.
14
In its sentencing memorandum, the district court identified at least
five individuals that Mitchell directed in laundering his illegal drug
proceeds, titling cars, opening telephone accounts, and obtaining safe
deposit boxes. Further, the district court found that all seven factors
referenced in U.S.S.G. § 3B1.1 cmt. n.4 and Sayles were satisfied.
There is sufficient evidence in the record to support each of these fac-
tors. In light of the evidence presented regarding the length of the
conspiracy, the drug distribution in several states, the purchasing of
cars and homes in different states, and the large amount of currency
in Mitchell's possession at the time of his arrest, we cannot conclude
that the district court erred in finding that Mitchell's offense level cal-
culation on the drug conspiracy offense should be increased by four-
levels.
VI.
Having reviewed the record and the parties' briefs, and having had
the benefit of oral argument, we find no reversible error. Accordingly,
we affirm the defendant's conviction and sentence, and uphold the
forfeiture order.
AFFIRMED
15