United States v. Bell

Opinion

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

_______________________

No. 99-50476 Summary Calendar _______________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

HOWARD JAMES BELL,

Defendant-Appellant.

____________________________________________________________

Appeal from the United States District Court for the Western District of Texas Civil Docket #W-97-CV-321 ____________________________________________________________

December 20, 2000

Before DAVIS, JONES, and DeMOSS, Circuit Judges.

EDITH H. JONES, Circuit Judge:*

The only issue on appeal is whether the district

court properly rejected Bell’s § 2255 petition raising a claim

of counsel’s ineffectiveness at sentencing. Finding no error,

we affirm.

* Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. In 1996, Howard James Bell (federal inmate # 57238-

097) pleaded guilty to conspiracy to distribute and possess

with intent to distribute methamphetamine, in violation of 21

U.S.C. § 841(a)(1).

At sentencing, Bell’s attorney did not object to the

four-level enhancement for Bell’s role in the offense. He

objected successfully to other enhancements, however, and as

a result, the court sentenced Bell to 210 months’

imprisonment, followed by five years’ supervised release, and

imposed a fine of $5000. Bell’s direct appeal was dismissed

as untimely.

After a series of procedural maneuvers, Bell was

given leave to pursue a § 2255 motion in district court in

which he alleged his trial counsel was constitutionally

ineffective for failing to object to a four-level sentence

enhancement for Bell’s role as an organizer or leader in the

offense. U.S.S.G. § 3B1.1.

Disagreeing with his position, the Government

submitted the affidavit of Bell’s trial attorney, Brian

Pollard. Pollard recalled that Bell was reluctant to talk

about any drug dealing he may have had or about what he had

told law enforcement personnel during debriefing prior to

counsel’s appointment. Pollard stated that he calculated

Bell’s potential sentence under the guidelines and assumed,

2 inter alia, that Bell would be found to be an organizer or

leader. He sent copies of his calculations to Bell and Bell’s

California attorney, William Logan. Pollard asserted that he

had several conversations with Bell prior to the guilty plea.

When he received the PSR, he immediately sent copies to Bell

and Logan and asked Bell to advise counsel if he had any

objections. Pollard’s notes showed that he subsequently

talked with Bell and presumably that they had discussed any

objections. After visiting Bell, counsel raised three

objections to the PSR, not including an objection to the

organizer/leader enhancement. Pollard did not recall Bell

saying that he wanted to object to that enhancement.

The district court held that Bell was not denied

effective assistance of counsel and denied his § 2255 motion.

The court found that the PSR supported the organizer/leader

enhancement, that counsel could not have been ineffective for

failing to present meritless objections, and that Bell could

not have been prejudiced by counsel’s failure to object to the

enhancement because Bell had presented nothing that would

indicate that such objection would have been granted. This

court granted Bell a COA to appeal.

DISCUSSION

Bell argues that he was denied effective assistance

of counsel, who failed to object to the four-level adjustment

3 to his base offense level for his role as an organizer or

leader of a criminal activity that involved five or more

participants or was otherwise extensive.

Bell’s PSR recommended a four-level upward

adjustment under U.S.S.G. § 3B1.1(a) for being a leader or

organizer of criminal activity that involved five or more

participants or was otherwise extensive. The probation

officer outlined three factors upon which he based his

conclusion that Bell played a organizational or leadership

role: (1) Bell was the source for all the methamphetamine

distributed by Hooper and the other co-conspirators, showing

Bell’s participation to a greater degree in the commission of

the offense; (2) “Bell controlled the price to be paid by

Hooper/Murphy for the methamphetamine that was purchased

thereby claiming a right to a larger share of the fruits of

the crime”; and (3) Bell packaged the methamphetamine and

shipped it via Federal Express “thereby participating to a

greater degree” in the commission of the offense. Counsel did

not object to this adjustment.

To prevail on a claim of ineffective assistance of

counsel, a defendant must show: (1) that his counsel’s

performance was deficient in that it fell below an objective

standard of reasonableness; and (2) that the deficient

performance prejudiced his defense. Strickland v. Washington,

4 466 U.S. 668, 689-94 (1984). A failure to establish either

deficient performance or prejudice defeats the claim. Id. at

697. To show that his attorney’s performance at sentencing

was prejudicial under Strickland, Bell must demonstrate that

there is a reasonable probability that but for counsel’s

ineffective assistance, the sentence would have been

significantly less harsh. Spriggs v. Collins, 993 F.2d 85, 88

(5th Cir. 1993) (emphasis added).

If counsel had successfully defeated any adjustment

for Bell’s role in the offense, Bell’s total offense level

would have been 31 which combined with his category II

criminal history, would have resulted in a guideline range of

121 to 151 months, rather than a range of 188 to 235 months.

See R. 1, 132. If counsel was deficient in not objecting to

the four-level enhancement, this resulted in a specific,

demonstrable enhancement to Bell’s sentence and, thus, was

prejudicial. See United States v. Phillips, 210 F.3d 345, 351

(5th Cir. 2000). Accordingly, this court must determine

whether counsel’s failure to raise a challenge to the

leadership-role enhancement constituted deficient performance.

A defendant’s base offense level may be increased

four levels if he was an organizer or leader of a criminal

activity involving five or more participants. U.S.S.G.

§ 3B1.1(a). A § 3B1.1 adjustment is proper only if the

5 defendant was an organizer, leader, manager, or supervisor “of

at least one other person who was criminally culpable in,

though not necessarily convicted for, the endeavor."1 United

States v. Gross, 26 F.3d 552, 555 (5th Cir. 1994); see

§ 3B1.1, comment. (n.2). To distinguish whether the defendant

played an organizational/leadership role or played a

management/supervisory role, the court should consider the

following factors: (1) the exercise 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.

§ 3B1.1, comment. (n.4).

Bell, who lived in California, admitted that he

supplied Hopper, a Texas truck driver, with approximately

seven to 15 pounds of methamphetamine on and off within a

year’s time. The methamphetamine was destined for Harold Joe

Murphy’s distribution network in Waco, Texas. In the

1 If the defendant did not organize, lead, manage, or supervise another participant, an upward departure, but not the base offense level increase, may be warranted if the defendant nevertheless exercised management responsibility over the property, assets, or activities of a criminal organization. § 3B1.1, comment. (n.2); see United States v. Jobe, 101 F.3d 1046, 1068 (5th Cir. 1996).

6 beginning, Bell supplied Hopper with small quantities and when

Hopper figured out that Bell could get more, Bell obtained a

pound of methamphetamine for Hopper. At first, Hopper

traveled to California to pick up the drugs from Bell,

sometimes accompanied by Murphy. Hopper later figured out

that they could use Federal Express to transport the drugs.

Hopper would telephone Bell to set up the drug purchase and

the transfer of money; Hopper would then send a cashier’s

check in payment to Bell or his associate/partner, Hasan.

Bell would buy one pound of methamphetamine for from $4,000 to

$9,000, and would sell it for $9,000 to $11,000 per pound. At

one time, Bell had several sources of his supply, including

Raymond Hajjaj. Bell was described as working for Hajjaj and

as Hajjaj’s right-hand man.

Bell asserts that these facts presented in the PSR

did not support the finding that he was a leader or organizer.

He asserts that there was “no discussion” that the criminal

activity involved five or more participants. Bell also

asserts that there is no evidence that he exercised decision-

making authority, recruited accomplices, claimed a right to a

larger share of the fruits of the crime, had a higher degree

of participation in planning or organizing the offense, or had

any control or authority over others.

7 The Government argues that an objection to the

§ 3B1.1(a) enhancement would not have been successful. The

Government argues that Bell (1) controlled the supply of all

of the methamphetamine distributed by Hopper and the co-

conspirators in the Waco area and thus played a central role

and participated to a greater degree in the commission of the

offense; (2) controlled the price of the methamphetamine paid

by Hopper and Murphy, controlled the method of payment by

requiring cashiers’ checks, some made payable to

intermediaries, and fronted drugs to Murphy and, thus,

manifesting control and decision-making authority in the

offense; (3) attempted to collect debts and thus to maintain

discipline as evidenced by Murphy’s assertion he began

receiving threats after Hopper demanded payment of his own fee

and said that Bell wanted his payment for the fronted drugs;

(4) used deputies and unwitting participants to cash checks

for him; (5) profited from his sale of the drugs and, thus, it

could be inferred that he received the largest share of the

fruits of the conspiracy; and (6) controlled the packaging at

his residence and shipment of the drugs via Federal Express

and, thus, played a leadership role. The Government asserts

that this evidence showed Bell’s exercise of control and

authority which supported the leadership adjustment.

8 It is clear from the PSR that the conspiracy

involved far more than five participants. The case involved

the four indicted codefendants three other named participants,

and others.

Moreover, from the foregoing facts, the district

court found Bell’s contention that he was not an organizer or

leader under § 3B1.1 unfounded, while the PSR’s contrary

conclusion was “fully supported by the record.” We are

mindful that a fact finding that a defendant is an organizer-

leader would be reviewed on direct appeal for clear error.

United States v. Lage, 183 F.3d 374, 383-84 (5th Cir. 1999),

cert. denied, 120 S.Ct. 1179 (2000). Thus, Bell bears a heavy

burden in demonstrating that counsel would necessarily have

prevailed in objecting to this enhancement in the district

court or on appeal.

After careful reviewing the PSR and relevant

portions of the record, we are unpersuaded by Bell’s

arguments. Bell’s pivotal role as a supplier to the

conspiracy also placed him in the position of packaging and

arranging delivery of the drugs, controlling the price, taking

a large share of the profit, enforcing payment from Murphy,

fronting drug deliveries on credit, and using dupes to receive

some of the disguised payments. Individually, none of these

actions might qualify for a sentencing enhancement. But put

9 together, they would surely have shielded the district court’s

finding that Bell was an organizer/leader from reversal for

clear error. Bell’s trial counsel was thus not

constitutionally deficient, and the trial court correctly

denied § 2255 relief.

AFFIRMED.