United States v. Brown

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 94-5569
WILLIE DAVID BROWN, a/k/a
Yellowboy,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Robert D. Potter, Senior District Judge.
(CR-93-264-P)
Submitted: December 29, 1998
Decided: January 21, 1999
Before MURNAGHAN, NIEMEYER, and MICHAEL,
Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
William Arthur Webb, Federal Public Defender, Robert H. Hale,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Robert J. Conrad, Jr., OFFICE OF THE UNITED
STATES ATTORNEY, Charlotte, North Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Willie David Brown appeals his convictions and sentence imposed
after a plea of guilty to conspiracy to possess with intent to distribute
and distribution of cocaine and cocaine base, in violation of 21 U.S.C.
§§ 841(a)(1), 846 (1994); possession with intent to distribute and dis-
tribution of cocaine base and aiding and abetting in the possession
with intent to distribute cocaine base on or about June 11, 1992, in
violation of 21 U.S.C. § 841(a)(1), 18 U.S.C.§ 2 (1994); knowingly
using fire and explosives in committing the felony of conspiracy to
possess with intent to distribute cocaine and cocaine base, in violation
of 18 U.S.C. § 844(h) (1994); and possession with intent to distribute
and distribution of cocaine base on or about November 2 and 4, 1993,
in violation of 21 U.S.C. § 841(a)(1), 18 U.S.C. § 2. We affirm
Brown's convictions and sentence.
Brown was the leader of a crack cocaine distribution conspiracy
operating in Charlotte, North Carolina. Brown had approximately
eight to ten dealers working for him, whom he supplied with crack
cocaine and who would then return part of the profits to Brown.
Brown and several of his co-conspirators were arrested following two
undercover buys, one conducted on November 2 and the other con-
ducted on November 4, 1993. Brown pled guilty to seven counts of
the eleven-count indictment the day before his scheduled trial. The
district court sentenced him to 420 months' imprisonment on the drug
counts and 60 months' imprisonment to run consecutively on the
count charging Brown with the knowing use of fire and explosives in
commission of a felony, in violation of 18 U.S.C.§ 844(h).
On appeal, Brown contends that the district court erred by finding
him guilty of both possession with intent to distribute crack cocaine
on November 2 and 4 and distribution of crack cocaine on November
2 and 4. Brown contends that his convictions for possession with
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intent to distribute crack cocaine should merge with his convictions
for distribution of crack cocaine, because the convictions arose out of
the same two undercover buys, and the Government did not show that
his possession of crack cocaine existed separately from the actual dis-
tribution. We disagree.
The evidence showed that Brown was the leader of the conspiracy
and directed its drug distribution activities. He possessed and then
doled out the conspiracy's drugs for distribution by his co-
conspirators. Brown indicated to undercover agent Michael Lewis
during both undercover buys that he [Brown] was unable to supply
the full amount of crack cocaine Lewis requested because he [Brown]
only had so much crack cocaine remaining to sell. Further, Brown's
co-conspirators, under Brown's direction and control, possessed the
drugs prior to and apart from the actual distribution. See United States
v. Schocket, 753 F.2d 336, 340 (4th Cir. 1985). Accordingly, there is
no merger, and Brown's convictions for both possession with intent
to distribute and distribution of crack cocaine do not amount to plain
error. See United States v. Olano, 507 U.S. 725, 731-32 (1993);
United States v. Meredith, 824 F.2d 1418, 1426 (4th Cir. 1987).
In addition to the formal brief filed on Brown's behalf by counsel,
Brown has filed a motion to file a supplemental brief along with the
brief. In that supplemental brief, Brown contends that Amendment
505 to the Guidelines, which became effective subsequent to Brown's
sentencing, alters his sentencing range and thus a reduction in sen-
tence is warranted. Although we express no opinion on the merits of
this claim, we note that the proper procedure to obtain a sentence
reduction based upon retroactive amendment of the Guidelines is by
motion in the trial court. See 18 U.S.C.§ 3582(c)(2) (1994). Accord-
ingly, although we grant Brown's motion to file his supplemental
brief, we deny his sentencing claim. The other claims which Brown
raises in his brief lack merit.
For these reasons, we affirm Brown's convictions and sentence.
We dispense with oral argument because the facts and legal conten-
tions are adequately set forth in the materials before the Court and
argument would not aid the decisional process.
AFFIRMED
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